Judgment no. 45/2017/DS-ST dated 19/07/2017 on a dispute over land use right

PEOPLE’S COURT OF THUY NGUYEN DISTRICT, HAI PHONG CITY

JUDGMENT NO. 45/2017/DS-ST DATED JULY 19, 2017 ON A DISPUTE OVER LAND USE RIGHT

On July 19, 2017, at the head office of the People’s Court of Thuy Nguyen District, Hai Phong City, a first instance trial was conducted to hear the case No.  34/2015/TLST-DS dated June 16, 2015 on dispute over land use right under the Decision to Bring the Case to Trial No. 14/2017/QDXXST-DS dated May 10, 2017 and 14A/2017/QDXXST-DS dated May 25, 2017, between the involved parties below:

1. Plaintiff: Mr. Le Van L (aka: Le Van D), born in 1962; Address: T village, T commune, T district, Hai Phong city;

Defender: Ms. Hoang Thi D - Lawyer of Law Office H, affiliated to Hai Phong City Bar Association;

2. Defendant: Ms. Le Thi T, born in 1952, address: T village, T commune, T district, Hai Phong city;

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

- Ms. Bui Thi T (aka: Bui Thi H), born in 1962; address: T village, T commune, T district, Hai Phong city;

Authorized representative of Ms. Bui Thi Tinh: Mr. Le Van L), born in 1962; Address: T village, T commune, T district, Hai Phong city;

- Mr. Tran Van K, born in 1990; Address: T village, T commune, T district, Hai Phong city;

Mr. Le Van L, Ms. Le Thi T, Ms. Hoang Thi D and Mr. Tran Van K appeared in court; Ms. Bui Thi T did not appear in court.

FACTUAL AND PROCEDURAL BACKGROUND

In the petition dated June 10, 2015 of the plaintiff, Mr. Le Van L and the testimonies during the settlement of the case as well as at the first-instance trial, the plaintiff presented:  In 1989, he bought from Ms. Dao Thi R (her husband is Mr. Bui Xuan T) a land area of ​​390m2 (in village T, commune T) with a level-four house thereon for 8 million VND, which his family has used so far but has not been granted a Certificate of land use right. At the time of purchase, there were no documents and no approval from the local government. In 1992, the purchase and sale contract was certified by the local government, but the land measurement had not been carried out.  In 1992 and 2010, Mr. L measured himself, made a one-meter ruler from 5 hand spans long and then carried out the land measurement but still found it lacking certain area.  Mr. L determined that, during the period of use, Ms. Le Thi T (adjacent household) encroached on his family's 70.7m2 of land to the south (determined according to the location of his family's land plot), with a width of 10m, a length of more than 7m, stretched deep into the land that Ms. T is using, other positions and boundaries remain unchanged because there are walls and foundations. Now Mr. L asks Ms. T to return the land for him to use.

The defender of the plaintiff had the same view as Mr. Le Van L; requested the Court to accept the claim of the plaintiff based on the following documents: the sale and purchase agreement 1992, the land transfer paper for Mr. Bai 1986, the payment receipt of Mr. L 1992, the property purchase application and the transfer fee receipt of Mr. L's property in 1992.

During the trial of the case, defendant Le Thi T presented:  In 1990, she rented an area of ​​green vegetable land (about 200m2) from Mr. Gon (Ms. Rac’s brother) and then bought it for 1,000,000 VND. After that, she built a house there on and has used it so far; the purchase and sale was handwritten with Mr. Gon, but due to a long period of time, she could not provide it for the Court, she did not encroach on Mr. L's land, so she did not agree to return the land to Mr. L.

Regarding evidence:  In addition to the testimonies, documents and evidence provided and handed over by the involved parties, there are also documents and evidence collected by the Court and shown as follows:

As for the purchase and sale document:  There is a land purchase and sale contract made in 1992 between the seller, Ms. Dao Thi R, and the purchaser, Mr. Le Van D (aka L) certified by the local government (the contract was made on September 10, 1992, confirmed by the local government on October 19, 1992) but a land measurement had not been carried out.

Regarding the land area Ms. Le Thi T is using, according to actual measurements, it is 160m2. 

The People's Committee of Commune T provided the following information:  The land area that Mr. L and Ms. T are in dispute was originally owned by Mr. Dao Van B (Ms. R's father), with an area of ​​390m2 according to the land allocation decision No. 04 dated March 28, 1986 by the People's Committee of Commune T for Mr. Dao Van B (in which residential land is 312m2, the remaining area is green vegetable land (land 5%). According to the cadastral map, the area of ​​land that Mr. L was using is shown in plot 614, map sheet No. 02, the area of ​​land that Ms. T was using is shown in plot 618, map sheet No. 02, but the parties have not completed the procedures for transferring the name, have not been named in the logbook of land monitoring, registration and management in the locality. Currently, Mr. B is still the owner of the land area of ​​390m2.

The Procurator expressed her opinion on the observance of the law and on the settlement of the case as follows:  The Judge and the Trial Panel have strictly followed the provisions of the civil procedure law during the settlement of the case from the time the case was accepted until the time the Trial Panel deliberates the judgment; the plaintiff, defendant, person with related legal rights and obligations have strictly complied with the provisions of law from the time of accepting the case until the time of the deliberation.  Propose the application of Articles 91, 92, 97 and 147 of the Civil Procedure Code; Articles 170, 212, 234, 266 and 688 of the Civil Code2005; Article 50 of the Land Law 2003; Clause 1, Article 48 of Resolution No. 326/2016/UBTVQH14 on rates for collection, exemption, reduction, payment, management and use of court fees and charges and Article 27 of the Ordinance on Court fees and charges in 2009; Clause 2, Article 16 of the Law on Mutual Legal Assistance in 2007 to settle the case as follows:  Do not accept Mr. Le Van L's request for Ms. Le Thi T to return the land area of ​​70.7m2 in village T, commune T, district T; regarding the court fee and the charge for judicial assistance abroad: Mr. Le Van L has to bear first-instance civil court fee related to non-monetary claim and the charge for judicial assistance abroad as per the law.

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 found that:

  [1] Regarding the current land area Mr. Le Van L and Ms. Le Thi T were using, it was ungrounded to determine that Mr. L and Ms. T have had legal use rights.  The dispute between the parties is a land dispute over encroachment due to borderline encroachment, so it only relates to the interests of Mr. Le Van L's family and Ms. Le Thi T's family.

  [2] The land transfer between Mr. Le Van L and Ms. Le Thi T: At the time of establishing the transaction, there were neither document made nor boundary markers set when handing over the land.  In 1992, a land purchase and sale contract was made, certified by the local government, but no measurement, no map of the location, landmarks, and land area were made until the time of the dispute. The local government had never measured or drawn the land area of ​​Mr. L and Ms. T in use.  Mr. L stated that Ms. T's land encroachment had occurred right from the time he received the land (1989) but for a long time (21 years), Mr. L did not ask the competent authority to settle the issue.  Mr. L's self-measurement and self-determination of the boundary, area and location of the missing land without the transferor's instructions were not objective and unconvincing. Therefore, Mr. L could not provide a valid ground to prove his lawful land use rights that had been encroached upon and in fact, Mr. L had never taken possession of the property on which Ms. T had encroached. On the other hand, the land area that Ms. T was using according to the current measurement is 160m2, if determined according to the presentation of Ms. T receiving the transfer of 200m2, it is also 40m2 missing. The presentation of Mr. Bui Xuan T and Ms. Dao Thi R that they only sold Mr. L a part of the area (12 meters) of residential land out of a total area of ​​390m2, the rest of the land was the area of ​​green vegetable land and assigned to Mr. G to look after, do cultivation was also the ground for solving the case. From the abovementioned analysis, there were not enough grounds to determine that Ms. Le Thi T encroached on Mr. Le Van L's land area of ​​70.7m2.

 [3] Regarding court fee: Since the case was accepted and settled by the Court before January 1, 2017 (effective date of the Resolution No. 326/2016/UBTVQH14 on rates for collection, exemption, reduction, payment and management of court fees and charges), Mr. L must bear the first-instance civil court fee related to non-monetary claim, which is 200,000 VND.

 [4] Regarding the charge for judicial assistance abroad:  Mr. Le Van L must bear the charge for judicial assistance abroad based on the request of judicial assistance.

With the above statement, the Trial Panel found that the opinions of the representative of the People's Procuracy of Thuy Nguyen district who spoke at the court hearing about the observance of the law and the settlement of the case were legally grounded.

For the foregoing reasons,

DISPOSITION

Pursuant to Articles 91, 92, 97, 147, 153 of the Civil Procedure Code; Articles 170, 212, 234, 266 and 688 of the Civil Code 2005; Article 166 of the Civil Code 2015; Article 50 of the Land Law 2003, amended in 2009; the Land Law 2013; Clause 1, Article 48 of Resolution No. 326/2016/UBTVQH14 on rates for collection, exemption, reduction, payment, management and use of court fees and charges and Article 27 of the Ordinance on Court fees and charges in 2009; Clause 2, Article 16 of the Law on Mutual Legal Assistance in 2007; hereby judge:

1. Do not accept Mr. Le Van L's lawsuit asking Ms. Le Thi T to return the land area of ​​70.7m2 in village T, commune T, Thuy Nguyen district, Hai Phong city.

2. With reference to court fees: Mr. Le Van L must bear 200,000 VND (Two hundred thousand dong) civil court fee of first instance, which would be deducted from the 200,000 VND (Two hundred thousand dong) of court fee advance that Mr. L has paid at the Sub-department of Civil Judgment Enforcement in Thuy Nguyen district, receipt No. 0011086 dated June 16, 2015. Mr. Le Van L has paid the court fee in full.

3. Regarding the charge for judicial assistance abroad: Mr. Le Van L must bear 300,000 VND (Three hundred thousand dong) of the charge for judicial assistance abroad, which would be deducted from the court fee advance of 150,000 VND in receipt No. 0007463 dated April 26, 2016 and VND 150,000 in receipt No. 000321 dated August 30, 2016 filed by Mr. Le Van L at the Sub-Department of Civil Judgment Enforcement of Thuy Nguyen district, Hai Phong city.  Mr. Le Van L has paid the charge for judicial assistance abroad in full.

With reference to right to appeal: The litigants appearing in court have the right to file an appeal within 15 days from the date of judgment pronouncement; the litigants not appearing in court have the right to file an appeal within 15 days from the date of receipt of the judgment or it is duly served.