Judgment no. 344/2019/DS-PT dated august 14, 2019 on a dispute over land use right

  SUPERIOR PEOPLE’S COURT IN HO CHI MINH CITY

JUDGMENT NO. 344/2019/DS-PT DATED AUGUST 14, 2019 ON A DISPUTE OVER LAND USE RIGHT

On August 14, 2019,  the People's Court of Ho Chi Minh City opens a public first-instance trial of the civil case No. 140/2019/TLST-DS dated March 6, 2019 on "Dispute over land use right".

As the first instance civil judgment No. 06/2018/DS-ST dated August 9, 2018 of the People's Court of province T was appealed.

According to Decision to bring the case to appellate trial No. 1480/2019/QDPT-DS dated July 12, 2019 between:

1. Petitioner: Ms. Nguyen Thi Thu T, born in 1958 – not appearing in court;

Address: 448 Lac Long Quan, Neighborhood 4, Ward 4, City T, Province T;

Legal representative of the plaintiff:  Legal representative of the plaintiff: Mr. Nguyen Thanh H, born in 1959; Address:  62/1 Phan Dang Luu, Neighborhood 1, Hoa Thanh Town, District H, Province T (Letter of authorization letter dated June 20, 2019) – appearing in court.

2. Respondent: Mr. Tran Thai Thuy K, born in 1973 – not appearing in court;

Address: 446 Lac Long Quan, Neighborhood 4, Ward 4, City T, Province T;

Legal representative of the respondent:  Ms. Nguyen Van T1, born in 1953. Address: Address: No. 96 Nguyen Van Rop, Neighborhood 1, Ward IV, City T, Province T (Letter of authorization dated May 13, 2019) – appearing in court.

3. Persons with interests and obligations related to the case:

3.1. Ms. Le Thi Hue D, born in 1951 – appearing in court;

Address: Address: 509 Benj Creek Dr.Garland TX 75040 USA; Address (on appeal petition):  10547 Black Walnut Drive Dallas T 75243 USA.

3.2. Ms. Nguyen Le Thi H, born in 1976 - Not appearing in court;

Address: 446 Lac Long Quan, Neighborhood 4, Ward 4, City T, Province T;

Legal representatives of Ms. Le Thi Hue D and Ms. Nguyen Le Thi H:  Ms. Nguyen Van T1, born in 1953. Address: Address: No. 96 Nguyen Van Rop, Neighborhood 1, Ward IV, City T, Province T (Letter of authorization dated May 13, 2019) – appearing in court.

3.3. Tran Nguyen Le V, born on August 22, 1999 – not appearing in court;

3.4. Tran Nguyen Thao V1, born on September 13, 2001 – not appearing in court;

3.5. Tran Nguyen Anh D1, born on March 9, 2004 – not appearing in court;

They are all children of Mr. Tran Thai Thuy K and Ms. Nguyen Le Thi H and reside at the same address as Mr. Tran Thai Thuy K and Ms. Nguyen Le Thi H.

Legal representatives of Tran Nguyen Thao V1 and Tran Nguyen Anh D1: Mr. Tran Thai Thuy K and Ms. Nguyen Le Thi H – not appearing in court.

4. Appellants and protesters:

4.1. Mr. Tran Thai Thuy K and Ms. Nguyen Le Thi H.

4.2. Ms. Le Thi Hue D.

4.3. Chief Procurator of the People's Procuracy of Province T.

FACTUAL AND PROCEDURAL BACKGROUND  

Representation of the petitioner, Ms. Nguyen Thi Thu T, in the lawsuit petition dated July 12, 2016 and subsequent statements:

Mrs. Le Thi G, Mrs. Nguyen Kim H2 (Mrs. Nguyen Thi Thu T's mother) and Mrs. Nguyen Thi N (Mrs. Le Thi Hue D's mother) are siblings.

In 1983, Mrs. G made a will leaving the land area of ​​5,000 m2 to Mrs. H2, but after making the will, Mr. G sold many parts of the land, leaving only an area of ​​1,722 m2. In 1985, Mr. G died. In 2002, Mr. H2 was granted a land use right certificate No. 02895 with an area of ​​1,722 m2. After Mr. H2 died, Mrs. T inherited the land and was granted a land use right certificate No. CH 00348 dated December 10, 2010, plot No. 286, map sheet No. 15, area 1,722 m2, located in Neighborhood 4, Ward 4, City T, Province T.

At the same time as making the will, Mr. G made a document, giving Mrs. Le Thi Hue D a free-rent shelter on the land area of ​​90.4 m2 in the area of ​​land which Mr. G made a will leaving Mr. H2. Mrs. D built a temporary house, with 04 pillars, corrugated iron roof, and walls shared by two adjacent houses. She had lived here until 2007 when she moved to the United States to settle down and handed over the house to her son and daughter-in-law, Mr. Tran Thai Thuy K, and Ms. Nguyen Le Thi H1 who have taken care and lived here so far.

Mr. K has his own house and recently Mr. K has repaired and built a permanent house on the land in question, so Ms. T filed a lawsuit to request the Court to force Mr. K to dismantle the works on the land and return the above-mentioned land because Mr. only allowed Mrs. D to live rent-free on the land, now that Mrs. D is no longer in Vietnam, he has to demolish his house and return the land to Mrs. T.

Representation of the respondent, Mr. Tran Thai Thuy K and the legal representative of Mr. K:

The land in dispute was left by the great-grandparents, looked after by Mrs. G. In 1983, Mrs. G made a will leaving it to Mr. H2, but at the same time, she also made a handwritten note leaving it to his mother, Mrs. D, a part of land area of ​​more than 100 m2 to build a house, not to be sold to other people. When Mrs. G gave her land, Mrs. D did not apply for a land use right certificate, until it was discovered that Mrs. H2 had been granted a land use right certificate for the entire land, and then Mrs. D filed a lawsuit to ask Mrs. H2 to carry out the procedures for transferring the land. Mrs. H2 agreed, but she died thereafter due to poor health, while the land transfer had not been done Mrs. D asked Mrs. T to complete the land transfer, but Ms. T did not agree.

His family lived on the land from 1982 to 2007. When Mrs. D went abroad, she made a power of attorney for him to look after and keep the above mentioned land. Currently, he is living with his wife and three children and has no other place to live. Through the time, the house has been damaged, so he asked Mrs. T to let him repair it. When he raised the floor, Mrs. T did not agree and reclaimed the land.

He does not agree to return the land to Mrs. T because that is Mrs. D's house and land, he is only the person authorized by Mrs. D to look after and keep the house, and land and he will not transfer it to other people.

Representation of person with related rights and obligations, Mrs. Le Thi Hue D, in the voluntary statement dated February 5, 2018:

Her maternal grandparents, Nguyen Van L and Nguyen Thi M, had a plot of land facing Ngo Tung Chau street (now Lac Long Quan), 54 meters wide. They had 6 children, including: Nguyen Thi T2 (Mr. Dang Van R's mother), Nguyen Thi K1, Nguyen Thi A (Mrs. Nguyen Thi Xuan M1's mother), Nguyen Thi G, Nguyen Thi Kim H2 (Mrs T's mother). ) and Nguyen Thi N (Mrs. D and Mrs. H3's mother,). While they were alive, they left a part of the church land to Mrs. G to look after and worship ancestors; the middle of the land was intended for a burial place for the family, the rest was divided equally to 6 children. As for Mr. N's portion, deeming that her grandparents suffered financial hardship, she paid for it as if she bought the land. Therefore, in 1971, Mrs. G let Mrs. H3 build a house on church land. Mrs. H2 brought her son, Mrs. T, to live with Mr. G in 1958.

In 1975, Mr. G sold all the land and church to Mrs. Xuan M1 (A's son), Mrs. M1 lived here until 1978, when she crossed the border and left many property to Mr. G, and Mrs. H2 for keeping on her behalf. Therefore, Mr. G and Mrs. H2 still lived on the land in question. In 1981, Mrs. G let her build a house next to Mrs. H3's to return her mother's portion. n 1983, Mr. G made a will leaving all her property to Mrs. H2 and made a document leaving two sisters, including her and Mrs. H3, a part of the land, 11.2 m top wide, 9.2 m bottom wide, and 17 m long. In 1991, Mrs. H3 immigrated to the United States. She told Mrs. H2 to leave her land to Mrs. D, but Mrs. H2 did not agree, so Mrs. H3 sold her land to Mrs. H2 for 06 maces of gold. In 1994, Mrs. H2 applied for a certificate of land use right, inclusive of her land, so she complained to the People's Committee of Ward 4, City T. When Mrs. H2 promised to make a will to adjust it, she withdrew the complaint. Mrs. H2 died before she could transfer ownership of the land to her, while the will in question states that all the land is left to Mrs. T. In 2007, she was sponsored by Mrs. H3 to the US, so she authorized her son, Mr. K, to take care of the house and land mentioned above. Therefore, she did not agree with Ms. T's lawsuit petition because Mr. G sold the land to Ms. Xuan M1; Mrs. G gave her land to live in, not a free shelter on the land of Mrs. H2 and Mrs. T; she does not reside in the US, currently she still holds Vietnamese nationality and household registration in Vietnam and will return to Vietnam in December 2019; it is reasonable that she authorizes her children to stay here while she is away.

In the first instance civil judgment No. 06/2018/DSST dated August 9, 2018, the People’s Court of Province T held that:

Pursuant to Article 228; Point a, Clause 5, Article 477 of the Civil Procedure Code in Viet Nam; Article 166 of the 2015 Civil Code in Viet Nam; Article 105 of the Land Law 2003 in Viet Nam; Article 203 of the Land Law 2013 in Viet Nam; Clause 2, Article 27 of the Ordinance on Court fees and charges in Viet Nam;

Accepting the petition of Ms. Nguyen Thi Thu T against Mr. Tran Thai Thuy K about the "Civil dispute over the return of land use right"; forcing Mr. Tran Thai Thuy K, Ms. Nguyen Le Thi H1 and their children, including Tran Nguyen Le V, Tran Nguyen Thao V1, Tran Nguyen Anh D1 to hand over to Mrs. Nguyen Thi Thu T the land use right with an area of ​​110.2 m2 in land plot No. 286, map sheet No. 15 belonging to the certificate of land use right No. CH 00348 issued by the People's Committee of Town T (now City T) dated December 10, 2010 to Ms. Nguyen Thi Thu T (with attached diagram).

Ms. T is entitled to own a house of grade 4C on the land, with a corrugated iron roof, no ceiling, partitions to build walls, walls on both sides are borrowed walls, ceramic tile floor, iron doors; Ms. T is obliged to pay Ms. Le Thi Hue D the amount of VND 22,109,109 (twenty-two million, one hundred and nine thousand, one hundred and nine dong).

It is noted that Ms. Nguyen Thi Thu T voluntarily supported the relocation costs for Mr. K and Ms. H1 with the amount of VND 100,000,000 (One hundred million VND).

Mr. K, Ms. H1, Le V, Thao V1, and Mr. D1 are entitled to stay for a period of 04 (four) months from the date the judgment takes legal effect.

In addition, the first-instance judgment also decides first-instance civil court costs; other procedural costs; liability for delayed judgment enforcement; the obligation to enforce the judgment and the right to appeal according to the provisions of law.

On August 16, 2018, Mr. Tran Thai Thuy K and Ms. Nguyen Le Thi H1 filed a co-appeal requesting the Court of Appeal to change the first-instance judgment; refusing the lawsuit petition on the grounds that the supplement to the Mr. G's will states that Mrs. D is also allowed to build a house and is prohibited from selling it; Mrs. D has authorized Mr. K to take care of the house and in coming time, Mrs. D will return to live and Mrs. D will not sell it to anyone, so Ms. T is not entitled to reclaim the land.

On November 27, 2018, Mr. Tran Thai Thuy K filed with the first-instance court an appeal dated October 2, 2018 of the person with related interests and obligations, Ms. Le Thi Hue D (bearing the consular authorization No. 2536 dated October 23, 2018) requesting the dismissal of the lawsuit petition filed by Ms. Nguyen Thi Thu T.

In the Appeal Decision No. 13/2018/KNPT-DS dated August 23, 2018, the Chief Procurator of the People's Procuracy of province T proposed the Court of Appeal to reverse the first-instance judgment and remand the case file to the court of first instance to re-try the case because it was inappropriate to force Mr. K and his wife and children to return the land use right; and the court’s failure take evidence to fully bring relevant persons in the proceedings is a serious procedural error; and the court’s failure to impose Mrs. D's obligations will make the judgment enforcement difficult; and the judgment also lacked the procurator's opinion as required in Form No. 52 issued together with Resolution No. 01/2017/NQ-HDTP in Viet Nam dated January 13, 2017 of the Council of Judges of the Supreme People's Court.

At today’s appellate court hearing:

Mr. Nguyen Van T1 sustains the appeal of Ms. Le Thi Hue D, Mr. Tran Thai Thuy K and Ms. Nguyen Le Thi H1, proposing to modify the first-instance judgment, rejecting the petitioner's entire claim and recognizing the area of the land in question for Ms. Le Thi Hue D. During the first-instance trial, Mrs. D and Mr. K did not file a counterclaim and did not carry out counterclaim procedures requesting recognition of the disputed land area for Ms. Le Thi Hue D.

Ms. Le Thi Hue D proposes to turn down the petitioner's lawsuit petition.

Mr. Nguyen Thanh H proposes to reject the appeal of Mr. K, Ms. H1, Mrs. D and the appeal of the Chief Procurator of the People's Procuracy of Province T, upholding the first-instance judgment.

The representative of the Procuracy states that the Appellate Trial Panel and the proceeding participants strictly have complied with the provisions of the civil procedure law; and the appeal is valid. Regarding the content, the first-instance judgment’s acceptance of the petitioner's lawsuit petition is an error. However, because the first-instance judgment was wrong when determining that Mr. K was the respondent instead of Ms. D. From the wrong identification of the participant in proceedings, the first-instance judgment forced Mr. K and Ms. H1 to return the land without forcing Mrs. D to return the land which leads the judgment unenforceable. So it is recommended to reverse the first-instance judgment and remand the case file to the first-instance court for re-trial of the case.

JUDGEMENT OF THE COURT 

Pursuant to documents and evidences examined at the court hearing, the results of the adversarial process at the court hearing; The Trial Panel judges as follows:

[1] The appeal of Mr. Tran Thai Thuy K, Ms. Nguyen Le Thi H1 and the appeal of the Chief Procurator of the People's Procuracy of province T were made in proper form and within the statutory period. So these are eligible for settlement according to the appellate procedures.

Ms. Le Thi Hue D did not appear in the first-instance court hearing, so Ms. Le Thi Hue D's appeal dated October 2, 2018 is still within the statutory period specified in Clause 3, Article 479 of the Civil Procedure Code, and is fully qualified for settlement according to appellate procedures.

By the date of the first-instance trial, Tran Nguyen Le V was an adult who is entitled to participate in the proceedings himself/herself and Tran Nguyen Le V also did not have a written authorization, but the first-instance judgment determined that Mr. Tran Thai Thuy K, Ms. Nguyen Le Thi H1 are natural representatives of Tran Nguyen Le V. That was not correct. However, the legitimate rights and interests of Tran Nguyen Le V do not conflict with the legitimate rights and interests of Mr. Tran Thai Thuy K and Ms. Nguyen Le Thi H1, so this error did not affect the rights and obligations of Tran Nguyen Le V, so it is not necessary to reverse the first-instance judgment.

Ms. Le Thi Hue D is the true owner of the house located on the land in dispute, the court should have instructed the petitioner to amend and supplement the petition to determine Ms. D as the respondent, but the first-instance judgment determined Mr. K as the respondent. That was incorrect. However, Mrs. D has no complaints about this and Mrs. D is still allowed to participate in the proceedings, so Ms. D's procedural rights and obligations are still respected, so it should stop as a lesson learned for the court of first instance.

The first-instance judgment did not state the procurator's opinion in the first-instance judgment as required in a judgment form. But this error does not affect the legitimate interests of the involved parties, so it is not necessary to reverse the first-instance judgment.

[2] The litigants all acknowledge that the land area in dispute originates from Mrs. Nguyen Thi G. On July 13, 1983, Mrs. Nguyen Thi G made a will, leaving the entire house and land to Mrs. Nguyen Thi Kim H2, but at the same time, the supplement to this Will also shows that Mrs. G agreed to let Ms. Le Thi Hue D build a house on the land with a condition not to transfer it to other people, and then Mrs. D built the house thereon. Until 2007, Ms. D authorized her son, Mr. Tran Thai Thuy K, to take care of the house for her to leave the country.

In 1985, Mr. G died. In 2002, Mr. H2 was granted a land use right certificate No. 02895 with an area of ​​1,722 m2. After Mr. H2 died, Mrs. T inherited the land and was granted a land use right certificate No. CH 00348 dated December 10, 2010, plot No. 286, map sheet No. 15, area 1,722 m2, located in Neighborhood 4, Ward 4, City T, Province T.

According to the existing condition of land use map No. 11/TDMN-2018 of the Southern Geodetic and Mapping Company Limited, the Land Registration Office of Province T, City T branch which was signed on May 9, 2018, the disputed land with an area of ​​​​110.2 m2 belongs to a part of land plot No. 286, map sheet No. 15 located in Neighborhood 4, Ward IV, town (now city) T, province T by Ms. Nguyen Thi Thu T who was granted a certificate of land use right No. BD 901226, register No. CH 00348 dated December 10, 2010. On the land, there is a class-4C house of Ms. Le Thi Hue D, which was built according to the will of Mrs. Nguyen Thi G. In 2007, Ms. D authorized her son, Mr. Tran Thai Thuy K, to take care of the house for Mrs. D to leave the country.

[3] Ms. Le Thi Hue D is an overseas Vietnamese who is allowed to enter Vietnam, so according to the provisions of Clause 1, Article 8 of the Housing Law 2014 in Viet Nam, Ms. Le Thi Hue D is eligible for owning a house in Vietnam.

Ms. Le Thi Hue D's house still exists on the disputed land area of ​​110.2 m 2 in part of land plot No. 286. Ms. Le Thi Hue D does not transfer the ownership of the house to another person, but she assigned it her biological son, Mr. Tran Thai Thuy K, with his wife and son K, to take care and use the house during Mrs. Le Thi Hue D's departure. That is, Ms. Le Thi Hue D is still exercising the rights of the home owner by assigning her children to manage and use the house. Therefore, Ms. Le Thi Hue D is still the owner of the house, Mr. Tran Thai Thuy K and his wife and children are only custodians and occupants of the house, not the owner. So, Ms. Le Thi Hue D does not breach the condition stated in the supplement to the will dated July 13, 1983 of Mrs. Nguyen Thi G. At the same time, Mrs. D returned to Vietnam to live here. Therefore, the representative of the Procuracy holds that the refusal of the petition of Ms. Nguyen Thi Thu T about reclaiming the land is grounded, so this opinion should be accepted. Therefore, the Trial Panel accepts the appeal of Ms. Le Thi Hue D, Mr. Tran Thai Thuy K and Ms. Nguyen Le Thi H1, to change the first-instance judgment and reject the petition of Ms. Nguyen Thi Thu T.

[4] Regarding the cost of the proceedings, it is re-determined as follows:  Ms. Nguyen Thi Thu T has to bear the entire measurement cost of 15,000,000 VND and the cost of judicial assistance abroad of 150,000 VND.

5] The first-instance civil court fee is re-defined as follows:  Nguyen Thi Thu T must bear the first-instance civil court fee unrelated to monetary claim. Mr. Tran Thai Thuy K does not have to bear the first-instance civil court fee.

[6] Ms. Le Thi Hue D, Mr. Tran Thai Thuy K and Ms. Nguyen Le Thi H1 are not subject to appellate civil court fee.

For the foregoing reasons,

DISPOSITION 

1. Pursuant to clause 2 Article 308 and Article 309 of the Criminal Procedure Code 2015; Article 48 of Resolution No. 326/2016/UBTVQH14 dated December 30, 2016 of the National Assembly Standing Committee, stipulating the court fees and charges, collection, exemption, reduction, management, and use thereof: Article 30 of Ordinance on Court Fees and Charges;

2. Accept the entire appeal of Ms. Le Thi Hue D, Mr. Tran Thai Thuy K and Ms. Nguyen Le Thi H1, accept partial appeal of the Chief Procurator of the Provincial People's Procuracy T. Modify the first-instance civil judgment No. 06/2018/DSST dated August 9, 2018 of the People's Court of province T as follows:

2.1. Reject the petition of Ms. Nguyen Thi Thu T asking Mr. Tran Thai Thuy K and Ms. Nguyen Le Thi H1 to relocate Ms. Le Thi Hue D's house to return to Ms. Nguyen Thi Thu T an area of ​​110.2. m2 which belongs to a part of land plot No. 286, map sheet No. 15 located in Neighborhood 4, Ward IV, City T, province T (according to the existing condition land use map No. 11/TDMN-2018 of Southern Geodetic and Mapping Company Limited, signed by the Land Registration Office of Province T, City Branch of T on May 9, 2018).

2.2. Regarding the cost of proceedings:

Ms. Nguyen Thi Thu T has to bear the entire measurement cost of 15,000,000 VND (Fifteen million VND) and the cost of judicial assistance abroad of 150,000 VND (One hundred and fifty thousand VND). These costs have been paid by Mrs. Nguyen Thi Thu T, so she does not have to pay more.

2.3. Regarding first instance civil court fee:

- Ms. Nguyen Thi Thu T must pay the first-instance civil court fee unrelated to monetary claim of 200,000 VND (Two hundred thousand VND) which is deducted from the paid court fee advance 200,000 VND (Two hundred thousand VND) according to the receipt No. 0003064 dated 22/7/2016 of the Sub-Department of civil judgment enforcement of City T, Province T, so no additional payment is required.

Mr. Tran Thai Thuy K and Ms. Nguyen Le Thi H1 are not subject to first instance civil court fee.

3. Regarding appellate civil fee: Ms. Le Thi Hue D, Mr. Tran Thai Thuy K and Ms. Nguyen Le Thi H1 are not subject to appellate civil court fee.

Reimburse Ms. Le Thi Hue D, Mr. Tran Thai Thuy K, Ms. Nguyen Le Thi H1 the court fee advance of 300,000 VND (Three hundred thousand VND)/person according to the receipts No. 0000741 dated November 28, 2018; No. 0000652 dated August 23, 2018; No. 0000840 dated February 28, 2019 made by the Department of Civil judgment enforcement of Province T.

4. The judgment takes legal effect from the date of pronouncement./