Ruling no. 20/2020/DS-ST dated july 22, 2020 regarding dispute over land use right and request for revocation of certificate of land use right

PEOPLE’S COURT OF KIEN GIANG PROVINCE

RULING NO. 20/2020/DS-ST DATED JULY 22, 2020 REGARDING DISPUTE OVER LAND USE RIGHT AND REQUEST FOR REVOCATION OF CERTIFICATE OF LAND USE RIGHT

On July 22, 2020, at its courtroom, the People's Court of Kien Giang province is holding a public trial of the case No. 06/2018/TLST-DS entertained on January 22, 2018, regarding the dispute over land use right and request for revocation of the certificate of land use right under the Decision to bring the case to trial No. 34/2020/QĐXXST-DS dated June 8, 2020 between the following litigants:

- Plaintiff: Mrs. Ngo Thi M (M Thi Nguyen; M Thi Ngo; Kelly M Thi), born in 1953; address: Australia.

Plaintiff’s legal representative: Mrs. Nguyen Thi Kim T, born in 1967, according to the letter of authorization dated September 19, 2017 (present).

Address: Inter-province N street, N ward, T district, Ho Chi Minh city.

Temporary residence address: No. N street, I residential area, P commune, B district, Ho Chi Minh city.

- Defendant:

1. Mr. Pham Hoang Q, born in 1972 (present).

2. Mrs. Dam Thi My N, born in 1977 (present).

Living at the same address: H street, N quarter, ward T, M district, Ho Chi Minh city.

- Persons with associated rights and obligations:  NLQ1 (absent).

- Witnesses:

1. NLC1 (requesting trial in absentia).

2. NLC2 (requesting trial in absentia).

3. NLC3 (requesting trial in absentia).

4. NLC4 (present).

5. NLC5 (present).

CASE DETAILS

As the authorized representative of the plaintiff, Mrs. Ngo Thi M, Mrs. Nguyen Thi Kim T makes the following statements: In 2007, Mrs. M received the transfered the land plot covering an area of 8,700m2 according to the Land Use Right Certificate No. AB 373778, register No. H00041, plot No. 9, map sheet No. 14 issued to NLC1 and NLC2 on March 13, 2006, and then assigned to Mr. Pham Hoang Q on April 19, 2007 at Hamlet X, Commune B, District P, Kien Giang Province, and the unlicensed outer land plot No. 9, map sheet number 14 at hamlet X, commune B, district P, Kien Giang province. In such transaction, the plaintiff asked Mr. Pham Hoang Q (who is her biological nephew) lend his name as the holder of her certificate of land use right in order to have a place to live when coming back to Vietnam in the future because Vietnam’s law does not allow overseas Vietnamese to hold land use rights.

Mrs. M received the above land transferred from the spouse, NLC1 and NLC2 at the agreed price of 32,000,000 VND/1,000m2 and totaling 278,400,000 VND (Two hundred and seventy eight million Vietnamese dong), including the value of land and land-attached property. After such land transfer transaction, Mrs. M spent money hiring another person to look after the land and take care of the trees. Mr. Q and Mrs. N have not made any contribution to this land.

On trusting her newphew, Mrs. M asked him (Mr. Q) to lend her his name as the holder of her land use right certificate. When the situation occured, Mr. Q and his wife made an "agreement and commitment" on May 8, 2010 clearly stating that Mrs. M paid for the transfer of this land plot and asked Mr. Q to lend her his name on the certificate; and they undertook to hand it over to Mrs. M unconditionally, and not to sell, transfer, lease or mortgage the land. Recently, Mrs. M wished to re-survey the land to apply for a new certificate but Mr. Q refused to cooperate in doing so. To such extent, Mrs. M decided to file a lawsuit.

In the lawsuit, Mrs. M is suing to petition the Court to force Mr. Pham Hoang Q and Mrs. Dam Thi My N to completely hand over the right to use the land located at plot 9, map sheet 14, hamlet X, commune B, district P, Kien Giang province to Mrs. M in its original condition and grant recognition of the right to use this land plot to Mrs. M available for her use; at the same time, is requesting revocation of the Certificate of Land Use Right No. H00041 issued by NLQ1 on March 13, 2006 which was assigned to Mr. Pham Hoang Q on April 19, 2007.

Mrs. M agrees with the results of the on-site examination conducted January 8, 2019 of the People's Court of Kien Giang province, the extract of cadatral survey dimension No. 11-2019 dated January 23, 2019 of the branch of the land registration office of District P and results of the property appraisal conducted June 5, 2020 of Construction Valuation and Consulting Limited Liability Company D. Mrs. M agrees to pay for the on-site examination and property appraisal at her own expense.

For the land covering an area of ​​2,315.2m2 which is not included in the Certificate of Land Use Right and is adjacent to the National Park, it belongs to Mrs. M as well. If NLC3 insists that he reclaimed it, Mrs. M will bring another case against him, not in this case.

Mr. Pham Hoang Q made his statements in the petition to sue filed on November 11, 2019 as follows: Mrs. Ngo Thi M and Mrs. Nguyen Thi Kim T accuse him of appropriating their property in the case that the Court is handling. Now, I am hoping that the Court will provide all evidence and the denunciation of Mrs. Nguyen Thi M and Mrs. Nguyen Thi Kim T for him so that he can use them as a basis to make his representation to the Court and report to competent regulatory authorities to seek clarification of issues arising in the case. For nearly eight years, he received many calls from different people claiming to be hired by Mrs. Ngo Thi M and asking him to authorize and sell the land to them (including some who threatened that, if he did not sell the land to them, get ready to see his family's five heads falling to the ground); Up to now, Mrs. Ngo Thi M’s spouse and Mrs. Nguyen Thi Kim T have not traded land with or borrowed money from anyone. At present, he is the only person who legally owns the land plot No. 9, map sheet No. 14 with an area of ​​8,700m2 in Hamlet X, Commune B, District P, Kien Giang Province according to the Land Use Right Certificate No. AB 373778 dated April 19, 2007.

In the pleading submitted November 12, 2019, the defendant, Mrs. Dam Thi My N, made her statement as follows: There is none of land trade or money borrowing relationship between her and the pair, Mrs. Ngo Thi M and Mrs. Nguyen Thi Kim T. Therefore, she respectfully requests that the Court provide all the evidence and denunciation of Mrs. Ngo Thi M and Mrs. Nguyen Thi Kim T to her in order to cooperate with the Court to handle the case and restore her honor.

NLQ1 confirmed that: NLC1 was granted a certificate of land use right by NLQ1 (called green paper) on February 5, 1996 in the register of land use right certificates No.11 QSDL/Ioo315, including 2 land plots (including land plot No. 9, map sheet 14, area of 8,700m2, land type: land used for residential and industrial production purposes). On March 13, 2006, NLQ1 reissued the modified Land Use Right Certificate No. AB 373778, land plot No. 9, map sheet No. 14, area of 8,700m2 (land type: Rural land covering an area of ​​400m2, land for planting perennial trees with an area of ​​8,300m2) located at hamlet X, commune B, district P, Kien Giang province.

On March 27, 2007, NLC1 and NLC2 transferred the land use right according to the land use right certificate No. AB 373778, issued on March 13, 2006, to Mr. Pham Hoang Q, under the land title transfer contract receiving the People's Committee of Commune B’s certification No. 32, book I/2007 TP/CC-SCT/HDGD dated March 27, 2007. The change in land use right transfer has been recorded on the Certificate on April 19, 2007. From the above facts, NLQ1 confirmed that the Land Use Right Certificate No. AB 373778 was reissued to the right holder and according to the regulatory procedures prescribed in Article 144 of the Government’s Decree No. 181/2004/ND-CP in Viet Nam dated October 29, 2004 on the implementation of the Land Law.

NLC1 and NLC2 made the following statements: In 2007, he and his wife transferred a land covering an area of ​​8,700m2 in plot 9, map sheet 14, located at hamlet X, commune B, district P, Kien Giang province.  At that time, NLC4 who was a real estate broker in P came to see him and his wife asking to buy land for someone else. After discussion, he and his wife agreed to transfer the above land. For the first time, NLC4 went alone to ask for agreement from him and his wife for the land transfer and, after reaching agreement on the transfer price, he and his wife asked NLC4 to pay a deposit of 30,000,000 VND and make him be informed that the transfer contract could be terminated if he did not proceed to pay the rest within 30 days after that.  Therefore, he and his wife entered into the contract of sale of crops and land use rights with NLC4 on February 6, 2007. The agreed transfer price was 32,000,000 dong/1,000m2, and totaled 278,400,000 dong. After receiving a deposit of 30,000,000 dong and concluding the contract to buy and sell crops and land use right with NLC4 on February 6, 2007, about a month later, he and his wife asked NLC4 to continue to pay the remaining amount to proceed with their transfer contract (he and his wife called to remind NLC4 three to four times). After that, NLC4 just came to pay the money to him and his wife. On that day, Mr. Pham Hoang Q and a woman (he and his wife did not know them) accompanied NLC4. Then he and his wife received the remaining amount of 248,000,000 dong from Mr. Pham Hoang Q and had no idea about where it came. He and his wife negotiated about and discussed land transfer directly with NLC4 only, but was not involved in NLC4’s transfer of the land after that. As they wished to transfer the land, they completely transfered the land to the person who wished to buy the land. That's all. They have completed the transfer for years, are not involved in this dispute and have no request at all.  Because they could not go to the Court, they asked for absence during the period of handling of the case.

NLC3 made the following statements: In the past, as NLC4's brother-in-law, he was asked to stay in and look after the land of 8,700m2 (according to the actual land survey, the land covers an area of 8,739.2m2) located at plot 9, map sheet 14, at hamlet X, commune B, district P, Kien Giang province. He was told by NLC4 that this land belonged to Mrs. M (Australian overseas Vietnamese) after a transfer transaction and Mrs. M asked her nephew, Mr. Q, to lend her his name on the certificate. When he took care of the land from 2015 to 2018, he built a temporary house to live in, and his main jobs were to stay there, look after the land and mow the lawn. Around at the end of 2018, when he questioned NLC4 about the remuneration that he was paid for care for the land, Mrs. Nguyen Thi Kim T who is Mrs. M's granddaughter paid the money for his jobs. After he reached agreement on the payment of 150,000,000 dong for his land care service lasting from 2015 to 2018, he dismantled the temporary house and moved away. Currently, there is none of houses on the land. He had no idea about the dispute between Mr. M and Mr. Q over the above-mentioned land. Also, because he already received the payment that he requested for his care of the land, he had none of request in this case. However, during the period when he worked as the keeper of the land, he reclaimed the rear land adjacent to the national park as shown in Figure 1–2–5–6–11-4 (area of ​​910.2m2) according to the report on on-site examination dated January 8, 2019 of the People's Court of Kien Giang province. This land not included in the land use right certificate of the land plot No. 9, the map sheet No. 4 above is not related to the land in dispute between Mrs. M and Mr. Q. So, he has no claim in the case.  If Mr. and Mrs. M have a dispute over this land (including an area of ​​910.m2 and an area of ​​1,405m2), they can bring another case of the dispute over this land. He refused to participate in the proceedings in this case and asked for absence during the settlement of the case.

NLC4 made the following statements: Previously, as a real estate broker in P, he dealt with Mrs. Ngo Thi M (an Australian overseas Vietnamese) who had the demand for land and introduced her to NLC1 and NLC2 to get their agreement on the transfer of the land that is in dispute in this case. The agreed transfer price was 32,000,000 dong/1,000m2; the certificated area was 8,700m2; the total value was 278,400,000 dong. Mr and Mrs. NLC1 agreed to transfer the land stretching from the red-soil trail to the outer edge of the national park borderline. At that time, as the law did not allow overseas Vietnamese to have their name on the land use right certificate, Mrs. M asked her nephew, Mr. Pham Hoang Q, to lend her his name on the land use right certificate. He helped Mrs. M to complete all the procedures for land transfer and registration of the name in the certificate. The only thing that Mr. Q did at that time was signing his name to complete the procedures.

At the trial, the authorized representative of the plaintiff, Mrs. Ngo Thi M, requested the Court to force Mr. Pham Hoang Q and Mrs. Dam Thi My N to hand over all the right to use the land located at plot 9, map sheet No. 14 at hamlet X, commune B, district P, Kien Giang province to Mrs. M covering an area of 8,739.2m2 according to the actual cadastral survey and grant Mrs. M recognition of the right to use this land plot. In this case, because Mrs. M is a foreigner, thus being unable to hold the land use right in her name, she is entitled to 80% of the value of the land use right, and pay 20% of the land value to Mr. Q and Mrs. N for their custody; does not need to pay NLC5 because of the fact that, after receiving the transferred land, she asked NLC4 to ask someone to take care of the land for her (then NLC4 asked NLC5 (Mr. NLC4's father) to take care of the land) and earn yields from pepper crops on the land. In addition, after that, when the elderly NLC5 could no longer take care of the land, Mrs. M continued to hire NLC3 to look after the land and mow the lawn on the land until 2018 in which Mrs. T and NLC3 agreed on the amount of 150,000,000 dong paid for his care of the land. After that, Mrs. T frequently visited the land. Mrs. M's authorized representative is requesting an exemption or reduction of the court fee because Mrs. M is an elderly person and voluntarily incur the court fee that the defendant, Mr. Q and Mrs. My N, must pay according to regulations, and voluntarily bears other procedural costs. In addition, Mrs. M wishes to withdraw part of the petition to sue regarding the request for revocation of the Land Use Right Certificate No. AB 373778, the Land Use Right Certificate No. in the register H00041 issued by NLQ1 on March 13, 2006, and registered for change to another holder named Mr. Pham Hoang Q on April 19, 2007. Mrs. T agreed with the valuation certificate dated June 5, 2020 of the Construction Valuation and Consulting Limited Liability Company D for settlement of the case.

Mr. Pham Hoang Q disagrees over the plaintiff’s request.

At present, he is the only person who legally owns the land plot No. 9, map sheet No. 14 with an area of ​​8,700m2 at Hamlet X, Commune B, District P, Kien Giang Province according to the Land Use Right Certificate No. AB 373778 dated April 19, 2007. He paid for the disputed land involved in this case at his own expense, not lending her his name on the certificate. At that time, Mrs. M only gave him 30,000,000 dong as a deposit to acquire the transferred land use right. At the trial, he disagreed about the property valuation because he believed that this was his land, thus needing no re-valuation.

Defendant Mrs. My N agreed with Mr. Q's statements and had no other opinion.

Witness NLC4 confirmed that As a land broker running his own company in P, he learned that, as Mrs. M wanted to acquire a transferred land in P, he took Mrs. M to have a look around the whole P, then introduced her the land of Mr. NLC1 and Mrs. N with an area of ​​8,700m2 (8,739.2m2 according to the actual cadastral survey​​) located at plot 9, map sheet 14, hamlet X, commune B, district P, Kien Giang province.  The agreed transfer price was 32,000,000 dong/1,000m2, and totaled 278,400,000 dong. After that, Mrs. M received the land transferred by the married couple, Mr. NLC1 and Mrs. NLC2. Mrs. M gave him money to pay a deposit to Mr. NLC1 and Mrs. NLC2. Then he gave a deposit of 30,000,000 dong to them, and made a one-month appointment to meet up to make a land use right transfer contract. At the time of entry into the contract, the married couple, NLC1 and NLC2, asked him to continue to fulfill other contractual obligations. Given the fact that the deposit would be non-refundable in case of his failure to do so, he called Mrs. T and Mr. Q and was answered that Mrs. M did not remit the money yet. As it was several months (he did not remember the exact number of months) late from the payment of the deposit, he was afraid that the deposit would be lost. After that, right after Mrs. M just sent the money, Mr. Q and Mrs. T went to P to pay off the remaining money to Mr. NLC1 and Mrs. NLC2. He himself was the one who carried out the procedures for registration for changing from the holder’s name, Mr. NLC1 and Mrs. NLC2, to Mr. Q’s name on the land use right certificate. After completing the procedures for transferring the land use right, Mrs. M asked him to look after her land and he asked NLC4’s father, NLC5, to keep the land to receive the yields from crops grown on the land, so Mrs. M did not pay the remuneration for land care to NLC5. After that, as NLC5 was old, he returned the disputed land to Mrs. T. Then, she continued to hire NLC3 to look after the land and mow the lawn. Around 2018, Mrs. T paid NLC3 about 150,000,000 dong. Since then, Mrs. T and NCL4 continued to frequently visit the land. Mr. Q did not pay any visit to take care of this land.

NLC5 confirmed that: In the unknown year in the past, when his son, NLC4, asked him to take care of the land covering an area of ​​8,700m2 (​​8,739.2m2 specified in the actual cadastral survey) located in plot 9, map sheet 14, in hamlet X, commune B, district P, Kien Giang province which is now the disputed land, he agreed to keep the land, was allowed to harvest pepper crops grown on the land to earn income, instead of remuneration for his land care service. After he looked after the land and kept it for about 2 years (he can't remember which year it is), because of his old age, he returned the land.

The representative of the Procuracy expressed his opinion that the Civil Court of the People's Court correctly determined the jurisdiction and legal relationship involved in the dispute. Regarding the legal proceedings: Since accepting the case, the Judge has sent a notice of acceptance of the case to the involved parties and the Procuracy in accordance with law, made a record of the required proceedings against the defendant, and carried out such steps as collection of documents, evidence, on-site appraisal and valuation of the disputed property. Thus, up to this point, it is found that the Judge has properly performed his duties and powers as prescribed in Article 48 of the Civil Procedure Code in Viet Nam. For litigants: Since accepting the case, the plaintiff has complied wth regulations laid down in Article 68, 70 and 71 of the Civil Procedures Code. During the period of acceptance and handling of the case, though the defendant Mr. Q and Mrs. N was legally summoned by the Court, they were absent. The Court decided to publicly post documents required under Article 179 in the Civil Procedures Code.

Regarding the settlement of the case, on the basis of evidence and the litigation process at the trial, case precedent No. 02/2016/AL in Viet Nam dated April 6, 2016 of the Panel of Judges of the Supreme People's Court, and according to the valuation certificate dated June 5, 2020 of the Construction Valuation and Consulting Limited Liability Company D, the land has the total value of land use right which is 20,956,409,600 dong, and Mrs. M is entitled to receive the amount of 278,400,000 dong paid for the land transferred from Mr. NLC1 and Mrs. NLC2. Mrs. M is entitled to the remaining amount according to the valuation certificate which equals 70% of the value of land, and Mr. Q and Mrs. N gets 30% of the value of land as payment for their contribution to, protection of the land and lending Mrs. M his name on the certificate. Therefore, accepting a part of the plaintiff's petition to sue to force Mr. Pham Hoang Q and Mrs. Dam Thi My N to return the value of land use right to Mrs. M according to the above analysis. Forcing Mrs. T as the authorized representative of Mrs. M to return to Mr. Pham Hoang Q and Mrs. Dam Thi My N the certificate No. AB 373778 for the right to use the land plot No. 9, map sheet No. 14 covering an area of ​​8,700m2 issued to NLC1 and NLC2 dated March 13, 2006, and changed to the certificate bearing Mr. Pham Hoang Q's name on April 19, 2007, at hamlet X, commune B, district P, Kien Giang province. Suspending part of the petition to sue of the plaintiff about the request for revocation of the certificate No. AB 373778 for the right to use the land plot No. 9, map sheet No. 14 covering an area of ​​8,700m2 issued to NLC1 and NLC2 dated March 13, 2006, and changed to the certificate bearing Mr. Pham Hoang Q's name on April 19, 2007, at hamlet X, commune B, district P, Kien Giang province.

Concerning court fees, recommending that Mrs. M be entitled to the exemption from the court fee because Mrs. M is an elderly person; her authorized representative voluntarily agrees to incur the court fee for Mr. Q and Mrs. N and other costs related to the legal proceedings.

After studying documents and evidence in the case file which have been verified and made known to the public at the court hearing session; based on the litigation results at the court session; by taking into full and complete consideration of evidence provided by the plaintiff, defendant and other litigants,

THE COURT IS MAKING THE FOLLOWING JUDGEMENTS

[1] Regarding authority: Because the plaintiff Mrs. Ngo Thi M, a permanent resident of Australia, files the petition to sue regarding the dispute over the land use right and request for revocation of the certificate of the right to use the land located at hamlet X, commune B, district P, Kien Giang province against the defendants, Mr. Pham Hoang Q and Mrs. Dam Thi My N, and involving the person having related rights and obligations, NLQ1, according to Point a, Clause 1, Article 38 of the 2015 Civil Procedure Code, the case falls under the jurisdiction to settle cases according to preliminary trial procedures of the Civil Court of the People's Court of Kien Giang province.

[2] Regarding the legislative relation regarding the dispute: The plaintiff Mrs. M is filing the petition to sue against the defendants Mr. Pham Hoang Q and Mrs. Dam Thi My N to request them to completely return the right to use the land located at plot 9, map sheet 14, hamlet X, commune B, district P, Kien Giang province to here in its original condition and the Court to grant recognition of the right to use this land plot available for her use; at the same time, is requesting revocation of the Certificate of Land Use Right No. H00041 issued by NLQ1 on March 13, 2006 on which the holder’s name was moved to Mr. Pham Hoang Q’s name on April 19, 2007.

[3] Regarding the legal proceedings: The Court has duly summoned the involved parties. Especially NLQ1, the Court has duly summoned this person for the second time but NLQ1 is absent without reason. Thus, based on Clause 2, Article 227 of the Civil Procedure Code of 2015, the Trial Panel conducted the trial in the absence of NLQ1 according to regulations.

 [4] In the process of handling of the case, as the authorized representative of Mrs. Ngo Thi M, Mrs. Nguyen Thi Kim T requested the withdrawal of part of the petition to sue regarding the request for revocation of the certificate No. AB 373778 for the right to use the land plot No. 9, map sheet No. 14 covering an area of ​​8,700m2 issued to NLC1 and NLC2 dated March 13, 2006, and changed to the certificate bearing Mr. Pham Hoang Q's name on April 19, 2007, at hamlet X, commune B, district P, Kien Giang province. Therefore, the Trial Panel shall accept this request and suspend part of the petition to sue of the plaintiff about the request for revocation of the certificate No. AB 373778 for the right to use the land plot in the register No. H00041 issued by NLQ1 on March 13, 2006, and changed to the certificate bearing Mr. Pham Hoang Q's name on April 19, 2007, at hamlet X, commune B, district P, Kien Giang province in accordance with regulatory provisions of Article 244 in the Civil Procedures Code.

[5] Regarding case details: In light of the petition to sue of Mrs. Ngo Thi M, the Court shall force Mr. Pham Hoang Q and Mrs. Dam Thi My N to return the entire land plot in its current state to Mrs. M, and recognize Mrs. M's lawful land use right for 8,700m2 (8,739.2m2 according to the actual cadastral survey) of the land located at hamlet X, commune B, district P, Kien Giang province. Mrs. M may contact the competent authority to proceed with the procedures to apply for a land use right certificate bearing her name. After Mrs. M finishes being granted the certificate of land use right, Mrs. M will pay the remuneration for the contribution to transaction, registration for the transfer and custody of the land plot to Mr. Q and Mrs. My N in proportion to the value of the land plot. If, as an overseas Vietnamese, Mrs. M is unable to bear the land use right in her name, Mrs. M can request the closeout sale of the entire above-mentioned land plot. After earning income from such sale, Mrs. M can get 80% of the value of the right to use the land plot, and pay 20% of the value of the right to use the land plot for the contribution and custody of Mr. Q and Mrs. My N. Regarding the origin of the disputed land plot, the plaintiff said that she received the land transferred from the married couple, NLC1 and NLC2, with an area of ​​8,700m2 at the transfer price of 278,400,000 dong, and asked NLC4 as a broker to proceed with the whole procedures for changing to the transferee name on the land use right certificate; because of being an overseas Vietnamese, asked Mr. Q (who is Mrs. M's newphew) to lend her his name on the certificate. Also, between Mrs. M on one side and Mr. Q and Mrs. My N on the other side made an agreement and commitment dated May 8, 2010. In the process of handling the case, the defendant Mr. Q only had a testimony that he is the only person who is legally owning the land plot No. 9, map sheet No. 14 with an area of ​​8,700m2; and there is none of trading or money borowing and lending transaction between him and Mrs. M, Mrs. T. As for Mrs. N's statements made on November 12, 2019, she said that there is none of trading or money borowing and lending transaction between her and Mrs. M, Mrs. T. Considering that the pleading of the authorized representative of the plaintiff Mrs. M is grounded. Because of the fact that, during the process of handling the case, NLC1 and his wife assumed that, as a broker in P, NLC4 came to see him and his wife and asked for transfer of the land to another person; after negotiation,the couple agreed to transfer the area of ​​8,700m2 at the agreed price of 32,000,000 dong/1,000m2, totaling 278,400,000 dong; NLC4 deposited 30,000,000 dong in advance, made a contract to buy and sell crops and the right to use land on February 6, 2007; he and his wife only met NLC4 and reached an agreement with him, and received the remaining amount of 248,000,000 dong given by Mr. Q to NLC1 and his wife though. However, NLC1 and his wife said that they negotiated about and discussed land transfer directly with NLC4 only and were informed that all procedures for transferring the land use right were completed by NLC4 himself. As they wished to transfer the land, they completely transfered the land to the person who wished to buy the land. Hence, they are not involved in this dispute.  However, during the process of handling the case, Mr. Q and Mrs. My N did not provide any document and evidence related to the case to protect their legitimate rights and interests. Meanwhile, NLC4 said (according to the record No. 131): “Previously, as a real estate broker in P, he dealt with Mrs. Ngo Thi M (an Australian overseas Vietnamese) who had the demand for land and introduced her to NLC1 and NLC2 to get their agreement on the transfer of the land that is in dispute.

At that time, as the law did not allow an overseas Vietnamese to have their name on the land use right certificate, Mrs. M asked her nephew, Mr. Pham Hoang Q, to lend her his name on the land use right certificate.

He helped Mrs. M to complete all the procedures for land transfer and registration of the name in the certificate. The only thing that Mr. Q did at that time was signing his name to complete the procedures.” Also, NLC4 made an additional statement: “The agreed transfer price was 32,000,000 dong/1,000m2 (thirty two million dong per thousand square meters); the certificated area was 8,700m2; the total value was 278,400,000 dong. Mr. NLC1 and his wife agreed to transfer the land stretching from the red-soil trail to the outer edge of the national park borderline.” At the trial court session, NLC4 confirmed that Mrs. M paid for the transfer of the land from the couple, Mr. NLC1 and Mrs. NLC2; NLC4 acted on her behalf to pay the deposit of 30,000,000 dong to Mr. NLC1 and Mrs. NLC2 and, after Mrs. M’s remittance of money to Mr. Q and Mrs. T, they paid the rest to the couple. After receiving the transferred land, Mrs. M asked NLC4 to take care of the land. He asked his father, Mr. NLC5, to take care of the land and was paid remuneration by pepper crop yields on the land. Thus, Mrs. M did not need to pay him for this. Meanwhile, Mr. Q reaffirmed that NLC4’s testimony was correct, but the so-called deposit of 30,000,000 dong was, in fact, the gift that Mrs. M offered him, not the deposit paid for transfer of the land to Mrs. M. However, Mr. Q does not have any evidence that Mrs. M gave him that 30,000,000 dong for acquisition of the land transferred from Mr. NLC1 and Mrs. NLC2. Also, the plaintiff's authorized representative did not admit that Mrs. M gave him money to deposit the transfer of the land.

On the other hand, there was a deed of agreement and commitment dated May 8, 2010 between Mrs. M and the couple, Mr. Pham Hoang Quan and Mrs. Dam Thi My N, made in May 8, 2010 (record No. 32, 32, 33) in witness of the Attorney Office  of Lawyer Pham C with the following contents: “…Mrs. M Thi Ngô (M Ngô) (according to the above documents) paid for purchase of the land and asked Mr. Pham Hoang Q and Mrs. Dam Thi My N to lend her his name on the certificate.

- Mr. Pham Hoang Q and Mrs. Dam Thi My N were committed to handing over the land in order for Mrs. M Thi Ngô (M Ngô) to register her name in the certificate when she is allowed by the State as an overseas Vietnamese to bear her name in the certificate of land use right.

- Mr. Pham Hoang Q and Mrs. Dam Thi My N confirmed that the land located at plot 9, map sheet No. 14 at hamlet X, commune B, district P, Kien Giang province is the property of Mrs. M Thi Ngo (M Ngo) and made the following commitments:

+ Not to sell, move, lease or mortgage plot 9, map sheet No. 14 covering an area of 8700.0 m2, and located at hamlet X, commune B, district P, Kien Giang province, to any person in any form.

+ to move or change to another name on the certificate unconditionally with regard to any person choosen and designated by Mrs. M Thi Ngo (M Ngo).

+ to sell upon M Thi Ngo (M Ngo)’s request and pay her proceeds from sale of the plot 9, map sheet No. 14 covering an area of 8700.0 m2, and located at hamlet X, commune B, district P, Kien Giang province, at the price determined on the selling date…” From the analysis of the above evidence, there are grounds to confirm that Mrs. M is the person paying money to acquire the transferred entire land in dispute at the price of 278,400,000 dong. The only thing that the couple, Mr. Q and Mrs. N, did is lending her the name on the certificate of land use right. The trial panel unanimously accepted the arguments of the authorized representative of the plaintiff as well as the proposal of the representative of the Procuracy on determining the source of money paid for the transfer of the right of the plaintiff Mrs. M to use the land plot located at hamlet X, commune B, district P, Kien Giang province with the amount of 278,400,000 dong for an area of ​​8,700m2. This land was transferred from Mr. NLC1 and Mrs. NLC2 who lent her his name on the certificate. Because of the fact that, at the time of transferring the land use right, Mrs. M was an overseas Vietnamese who was not allowed by Vietnamese law to use her name for registering her right to the land in Vietnam, it is necessary to apply the Judicial Precedent No. 02/2016 attached to Decision No. 220/QD-CA in Viet Nam dated April 6, 2016 of the Chief Justice of the Supreme People's Court on the publication of case precedents for trial.

The authorized representative of the plaintiff agreed with the valuation certificate issued by Construction Valuation and Consulting Limited Liability Company D on June 5, 2020 on the value of the right to use the land covering an area of 8,739.2m2 which is 20,956,409,600 dong. According to his statements, Mr. Q disagreed about the property valuation because he believed that this was his land, thus needing no re-valuation. According to the valuation certificate issued by Construction Valuation and Consulting Limited Liability Company D on June 5, 2020, the value of the right to use the land covering an area of 8,739.2m2 is 20,956,409,600 dong. Therefore, the difference between the value of land use right at the time of trial and the price at which the parties carried out the transfer transaction is

20,956,409,600 dong (price determined at the time of trial) – 278,400,000 dong (payment for transfer of the right to use the land) = 20,678,009,600 dong (difference).

[6] In terms of the difference in the effort in keeping and protecting the land in dispute: The defendants, Mr. Q and Mrs. N, that are named in the certificate have no effort in keeping and protecting the disputed land. However, Mrs. M is the one who paid to hire NLC3 to take care of her land and mowing the lawn. According to the statement of NLC3 (record number 132, 133), he said that NLC4 asked him to keep and look after the land of 8,700m2 (8,739.2m2 according to the actual survey​​) located in plot 9, map sheet 14 at hamlet X, commune B, district P, Kien Giang province. When NLC4 said he would pay him for keeping, looking after the land, he heard NLC4 say that this land belongs to Mrs. M (Australian overseas Vietnamese), and Mrs. M asked her nephew, Mr. Q, to act in her name. He kept and looked after this land from 2015 to 2018, but before that, he did not know who took care of the land. Around the end of 2018, when he told NLC4 about the land care fee, Mrs. T, Mrs. M's niece, paid him for his effort in looking after, caring the land and mowing the lawn on the land. After they agreed to caculate the amount of 150,000,000 dong on the basis of the period from 2015 to 2018, he has received this amount in full. Also, at the trial court, NLC5 confirmed that, in the past, his son NLC4 asked him to take care of the land covering an area of ​​8,700m2 (​​8,739.2m2 specified in the actual cadastral survey) located in plot 9, map sheet 14,  in hamlet X, commune B, district P, Kien Giang province which is now the disputed land. He agreed to keep the land, was allowed to harvest pepper crops grown on the land to earn income, instead of remuneration for his land care service. After he looked after the land and kept it for about 2 years (he can't remember which year it is), because of his old age, he returned the land. Then, Mrs. T and NLC4 frequently visited the land. Therefore, there is grounds to determine that Mrs. M is the one who spends money to hire someone to look after, take care of and mowing the lawn on the land, embellish it to increase the value of the land, so the difference must be determined to be 20,678,009,600 VND. Mrs. M is entitled to 70% of the difference in land use right value. Mr. Q and Mrs. N only lend her their name on the certificate, did not hire someone to keep and look after the land. So, the couple should be paid 30% of the difference in the land use right value in response to their effort.

The calculation of the payment that Mr. Q and Mrs. My N are paid owing to their effort in taking care of and looking after the land in dispute is based on the difference as follows: 20,678,009,600 dong x 30% = 6,203,402,880 dong. The amount that Mrs. M is paid is 70% of the difference calculated as follows: 20,678,009,600 dong x 70% = 14,474,606,720 dong.

Thus, the transaction on May 8, 2010 between Mrs. M and Mr. Q and Mrs. My N occurs because of the fact that, as an overseas Vietnamese, Mrs. M could not be named in the land use right certificate, and she asked him and his wife to lend her their name on the Land Use Right Certificate No. AB 373778, book number: H00041, plot No. 9, map sheet No. 14, area of 8,700m2 issued to NLC1, NLC2 on 13/3/2006, adjusted by changing to Mr. Pham Hoang Q’s name on it on April 19, 2007 for the land located in hamlet X, commune B, district P, Kien Giang province. The Court agrees to keep the current status by allowing Mr. Pham Hoang Q to be named on the certificate No. AB 373778 for the right to use the land plot No. 9, sheet of copy Map No. 14 covering an area of ​​8,700m2 issued to NLC1 and NLC2 dated March 13, 2006, and changed to the certificate bearing Mr. Pham Hoang Q's name on April 19, 2007, at hamlet X, commune B, district P, Kien Giang province. Thus, Mr. Q and Mrs. N have obligations to return the property value which Mrs. M's land use right as follows: 14,474,606,720 dong (difference) + 278,400,000 dong (payment for transfer of the right to use the land) = 14,753,006,720 dong.

[7] For the land covering an area of ​​2,315.2m2 which is not included in the Certificate of Land Use Right and is adjacent to the National Park, because there is no dispute between Mrs. M and NLC3, the Court is not petitioned to handle this. Therefore, the trial panel does not consider it. If there will be any dispute between Mrs. M and NLC3 later in the future, another legal proceedings will take place.

At the court, the authorized representative of the plaintiff, Mrs. T, admits that she is keeping the the certificate No. AB 373778, book no. H00041, land plot No. 9, map sheet No. 14 covering an area of ​​8,700m2 issued to NLC1 and NLC2 dated March 13, 2006, and changed to the certificate bearing Mr. Pham Hoang Q's name on April 19, 2007, at hamlet X, commune B, district P, Kien Giang province. Therefore, the Trial Panel forced Mrs. T to return the above certificate to Mr. Pham Hoang Q when the judgment took legal effect.

Based on the foregoing, in the discussion and deliberation, the Trial Panel unanimously accepts a part of Mrs. Ngo Thi M's petition for claiming the property value which is the land use right at market price on the grounds that Mrs. M spent money to receive the transfer of land use right and asked Mr. Pham Hoang Q acting in her name; accepts the proposal of the representative of the Procuracy; do not accept the arguments of Mr. Q and Mrs. My N.

[8] Regarding first-instance civil court costs, Article 147 of the 2015 Civil Procedure Code applies; Pursuant to Point dd, Clause 1, Article 12, Point b, Clause 2, Article 27 of Resolution No. 326/2016/UBTVQH14 in Viet Nam dated December 30, 2016 of the National Assembly Standing Committee stipulating the rates of collection, exemption, reduction, collection and payment, management and use of court fees and court fees, Article 2 of the Law on the Elderly, Article 5 of the 2009 Law on Vietnamese Citizenship as amended and supplemented in 2014, forcing Mr. Pham Hoang Q and Mrs. Dam Thi My N to bear the civil court fee with a value of 6,203,402,880 dong for the part of the value that he is entitled to, as follows:

The court fee from over 4,000,000,000 dong = 112,000,000 dong + 0.1% of the value of the disputed property exceeding 4,000,000,000 dong. 6,203,402,880 = 112,000,000 dong + (0.1% x 2,203,402,880 dong) = 114,203,402 dong (rounded to 114,203,000 dong).

Recognizing the plaintiff’s willingness to pay the full amount of the defendant’s court fee which is worth 114,203,000 dong.

Because of her old age, Mrs. Ngo Thi M is exempted from the court fee in accordance with regulations.

Repaying Mrs. M an amount of 300,000 dong paid as the advance court fee according to the receipt No. 0001020 dated January 16, 2018 of the Civil Judgement Execution Department of Kien Giang province.

[9] Other legal procedures costs:

For the cost of on-site valuation which is 1,733,000 dong, according to value-added invoice number: 0005491 dated January 29, 2019 of the branch of the district land registration office P, as the authorized representative of the plaintiff, Mrs. Ngo Thi M, Mrs. T has advanced this expense, but the plaintiff did not ask the Court to reconsider the above amount. Considering that the plaintiff's voluntariness was lawful, the Trial Panel shall respect it.

Regarding the fee of property appraisal and valuation: The valuation fee for the first instalment is 30,000,000 dong according to the receipt number: 0000047, dated February 18, 2019; the second installment is 15,000,000 dong, according to the contract termination report No.: 228/HĐG-ĐV, dated June 2, 2020 of Construction Valuation and Consulting Limited Liability Company. As the authorized representative of the plaintiff, Mrs. Ngo Thi M, Mrs. T has advanced this expense, but the plaintiff did not ask the Court to reconsider the above amount. Considering that the plaintiff's voluntariness was lawful, the Trial Panel shall respect it.

In light of the foregoing,

HEREIN DECIDES

Pursuant to Point a, Clause 1, Article 38, Article 99, Article 147, Clause 1, Article 227, Article 244, Article 273, Article 280 of the 2015 Civil Procedure Code; Pursuant to Article 100 of the 2013 Land Law in Viet Nam; Judicial Precedent No. 02/2016/AL attached to Decision No. 220/QD–CA dated April 6, 2016 of the Chief Justice of the Supreme People's Court on the publication of judicial precedent; Point dd, Clause 1, Article 12, Point b, Clause 2, Article 27 of Resolution No. 326/2016/UBTVQH14 dated December 30, 2016 of the National Assembly’s Standing Committee, stipulating the rates of collection, exemption, reduction, collection, payment and management and use of court fees and charges; Article 2 of the Law on the Elderly, Article 5 of the Law on Vietnamese Nationality in 2009 amended and supplemented in 2014.

1. Partially accepting the petition of the plaintiff, Mrs. Ngo Thi M (M Thi Nguyen; M Thi Ngo; Kelly M Thi) against Mr. Pham Hoang Q, and Mrs. Dam Thi My N.

2. Keep the current status of the land use right according to the certificate No. AB 373778, book no. H00041 for the right to use the land plot No. 9, sheet of copy Map No. 14 covering an area of ​​8,700m2 issued to NLC1 and NLC2 dated March 13, 2006, and changed to the certificate bearing Mr. Pham Hoang Q's name on April 19, 2007, at hamlet X, commune B, district P, Kien Giang province, by allowing Mr. Pham Hoang Q to continue to manage and use the land. According to the report on on-site examination on January 8, 2019 of the People's Court of Kien Giang province; According to the Cadastral Measurement Sheet No. TD 11-2019 dated January 23, 2019 of the branch of land registration office in district P, Kien Giang province, the land has the following specific measurements:

Side 6-7 bordering Mr. Le Van H's land = 7.68m;

Side 7-8 adjacent to Mr. Le Van H's land = 50m; Side 8-9 bordering the red-soil trail = 118.71m; Side 9-10 bordering the red-soil trail = 30.67m; Side 10-11 adjacent to Mr. Vu Van O's land = 70m;

Side 11-6 bordering the land involved in the dispute between NLC3 and Mrs. Ngo Thi M = 127.07m.

Requesting competent agencies to adjust the land use right certificates of the involved parties to match the actual area in use at the request of the involved parties.

3. Forcing the couple, Mr. Pham Hoang Quan and Mrs. Dam Thi My N, to repay the value of the right to use the land according to the certificate No. AB 373778, book No. H00041, plot No. 9, map sheet No. 14 covering an area of ​​8,700m2 (8,739,2m2 according to the actual cadastral survey) issued to NLC1 and NLC2 dated March 13, 2006, and changed to the certificate bearing Mr. Pham Hoang Q's name on April 19, 2007, located at hamlet X, commune B, district P, Kien Giang province, to Mrs. Ngo Thi M (M Thi Nguyen; M Thi Ngo; Kelly M Thi) with the amount of 14,753,006,720 dong (fourteen billion, seven hundred fifty three million, six thousand and seven hundred twenty dong).

From the date on which the obligee’s petition for judgment execution is filed, if the obligor is late to pay such amount, he/she must bear monthly interest at the rate specified in Clause 2 of Article 468 in the 2015 Civil Code in Viet Nam.

In case where Mr. Pham Hoang Q and Mrs. Dam Thi My N do not repay the amount of 14,753,006,720 dong to Mrs. Ngo Thi M, then Mrs. Ngo Thi M shall be entitled to request the competent authority to dispose of the property in the land use right certificate No. AB 373778, book number: H00041, plot No. 9, map sheet No. 14, area of 8,700m2 (8.739,2m2 according to the actual cadastral survey) issued by NLQ1 to NLC1, NLC2 on March 13, 2006, adjusted to change to Mr. Pham Hoang Q's name on April 19, 2007, located at hamlet X, commune B, district P, Kien Giang province to have money to refund the above amount to Mrs. Ngo Thi M.

4. Forcing Mrs. Nguyen Thi Kim T, the authorized representative of the plaintiff Mrs. Ngo Thi M, to return the certificate No. AB 373778, book No. H00041, land plot No. 9, map sheet No. 14 covering an area of ​​8,700m2 issued to NLC1 and NLC2 by NLQ1 dated March 13, 2006, and changed to the certificate bearing Mr. Pham Hoang Q's name on April 19, 2007, located at hamlet X, commune B, district P, Kien Giang province (original copy) to Mr. Pham Hoang Q. and his wife whenever the judgement enters into force.

In case where, as the authorized representative of the plaintiff Mrs. Ngo Thi M, Mrs. Nguyen Thi Kim T fails to return the above-mentioned land use right certificate to Mr. Pham Hoang Q, Mr. Pham Hoang Q is entitled to request the law enforcement authority to re-issue the certificate of land use right in accordance with the provisions of the land law.

5. Suspending the petition to sue of the plaintiff about the request for revocation of the land use right certificate No. AB 373778, book No. H00041, plot No. 9, map sheet No. 14 covering an area of ​​8,700m2 (8.739,2m2 according to the actual cadastral survey) issued to NLC1 and NLC2 by NLQ1 dated March 13, 2006, and changed to the certificate bearing Mr. Pham Hoang Q's name on April 19, 2007, located at hamlet X, commune B, district P, Kien Giang province.

6. Regarding costs of the trial court and other legal procedures:

- Regarding costs of the trial court: Respecting the plaintiff's willingness to bear the first-instance civil court costs on behalf of the defendant Mr. Pham Hoang Q, Mrs. Dam Thi My N which total 114,203,000 dong (one hundred and fourteen million two hundred and three thousand dong).

Because of her old age, Mrs. Ngo Thi M is exempted from the court fee in accordance with regulations.

Repaying Mrs. M an amount of 300,000 dong paid as the advance court fee according to the receipt No. 0001020 (paid by Mrs. Nguyen Thi Kim T on her behalf) dated January 16, 2018 of the Civil Judgement Execution Department of Kien Giang province.

- Regarding other legal procedures costs:

For the cost of on-site valuation which is 1,733,000 dong, according to value-added invoice number: 0005491 dated January 29, 2019 of the branch of the district land registration office P, as the authorized representative of the plaintiff, Mrs. Ngo Thi M, Mrs. T has advanced this expense, but the plaintiff did not ask the Court to reconsider the above amount. Considering that the plaintiff's voluntariness was lawful, the Trial Panel shall respect it.

Regarding property appraisal and valuation costs: The valuation fee for the first instalment is 30,000,000 dong according to the receipt number: 0000047, dated February 18, 2019; the second installment is 15,000,000 dong, according to the contract termination report No.: 228/HĐG-ĐV, dated June 2, 2020 of Construction Valuation and Consulting Limited Liability Company D. As the authorized representative of the plaintiff, Mrs. Ngo Thi M, Mrs. T has advanced this expense, but the plaintiff did not ask the Court to reconsider the above amount. Considering that the plaintiff's voluntariness was lawful, the Trial Panel shall recognize it.

Advising litigants of the rights to appeal against the preliminary ruling within 15 days. Advising litigants present from the pronouncement date of this. Advising litigants absent from the date of receipt of the judgement or the date of posting of the judgement.

In cases where the judgement is executed under the provisions of Article 2 of the Law on Civil Judgment Execution in Viet Nam, the obligee and obligor to execution of the civil judgment may negotiate about how the judgment is executed, the right to request judgment execution, voluntary execution of the court judgement or shall be subject to law enforcement processes under Articles 6, 7, 7a and 9 of the amended and supplemented Law on Civil Judgment Execution; the limitation period of execution of the court judgement is subject to regulations laid down in Article 30 of the Law on Civil Judgement Execution.


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Ruling no. 20/2020/DS-ST dated july 22, 2020 regarding dispute over land use right and request for revocation of certificate of land use right

Số hiệu:20/2020/DS-ST
Cấp xét xử:Sơ thẩm
Agency issued: Tòa án nhân dân Kiên Giang
Field:Dân sự
Date issued: 22/07/2020
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