Experience on land use right disputes and requests for annulment of specific decisions in Vietnam

1. Summary of the case:

The parents of Ms. Lam Thi H are Mr. Lam Dui (deceased in 1967) and Mrs. Nguyen Thi Tham (deceased in 1968) who established a residential land area in 1947 with a land area of 1,200 square meters. After the liberation in 1975, the Cam Thanh commune authorities called on citizens to return to their old gardens for residential and production purposes to stabilize their lives. At this time, Mr. Lam Van Dung (Mrs. Hay's grandson) used the garden of Mrs. Hay's parents to build a house with a land area of 700 square meters, while the remaining 520 square meters of land behind the Cam Thanh commune authorities were given to Mrs. Pham Thi Dien for residential purposes.

In 1981, Mrs. H returned to find that both Mr. D and Mrs. D had built houses on the piece of land that belonged to her parents. Mrs. H discussed with them, and Mrs. D agreed to demolish the house and return the land; the 700 square meters of land used by Mr. D was agreed to be used by Mrs. H's family. According to Mrs. H, she had made an agreement with Mr. D that "when the State announces land registration, she will call her to register the land," but Mr. D did not comply, and his household members registered the land without her acknowledgment.

For the household of Mr. Lam Van Dung who used the land after the liberation, they registered the land according to Directive 299/TTg and Decree 64/CP. On October 18, 1994, the People's Committee of Hoi An town (now Hoi An city) issued Land Use Rights Certificate (GCNQSDĐ) number E 0255650 with an area of 1,220 square meters, map sheet number 05 for Mr. Dung's family.

Due to the housing needs (now with 9 people), in November 2015, Mr. Lam Van Dung requested to change the land use purpose of plot number 218 (previously 560), map sheet number 16 (previously sheet 05), with an area of 520 square meters from other perennial crop land to residential land in rural areas. On December 25, 2015, the People's Committee of Hoi An town issued Decision number 1171/QD-UBND allowing Mr. Dung's family to change the land use purpose with 200 square meters for permanent residential use and 320 square meters for other annual crop land. On July 14, 2016, the Department of Natural Resources and Environment of Quang Nam province issued a Land Use Rights Certificate for him on plot 218, with an area of 520 square meters.

On July 25, 2016, the People's Committee of Cam Thanh commune conducted a reconciliation of the land dispute between Mrs. Lam Thi H and Mr. Lam Van Dung, where all parties acknowledged that the disputed land area of 520 square meters on plot 560, map sheet number 05, had its origins before 1975 when it was used by Mr. Lam Dui. After 1975, when the State arranged land for the people, this plot of land was used by Mr. Lam Van Dung (referred to as Mr. Lam Dui's nephew by marriage) for living and was granted the Land Use Rights Certificate up to the present.

2. Process of resolving the case:

In the first-instance civil judgment No. 29/2021/DS-ST dated June 24, 2021 of the People's Court of Quang Nam province, it was declared:

Accepting the lawsuit initiation request of the plaintiff, Ms. Lam Thi H.

Canceling the Land Use Rights Certificate issued by the Department of Natural Resources and Environment of Quang Nam province to Mr. Lam Van D on July 14, 2016 for plot number 218, map sheet number 16, with an area of 520 square meters, in Thanh Tam D hamlet, Cam Thanh commune, Hoi An city, Quang Nam province. Ordering Mr. Lam Van Dung to return the land area of 529.4 square meters (actual measurement) belonging to plot number 218, map sheet number 16, address: Thanh Tam D hamlet, Cam Thanh commune, Hoi An city, Quang Nam province to Ms. Lam Thi H (with accompanying diagram).

Ms. Lam Thi H must reimburse the value of the architectural items including: fence, trees, and the cost of converting the land from other annual crop land to residential land in rural areas with an area of 200 square meters for Mr. Lam Van Dung, totaling 63,789,800 VND. The judgment also mentioned appeal rights and the right to appeal of the parties.

Appeal: On July 7, 2021, Mr. Lam Van Dung, the defendant in the appeal case, argued that the first-instance judgment on June 24, 2021 of the People's Court of Quang Nam province based on Article 21 of the 1993 Land Law "The decision to transfer land being used by someone to another person shall only be made after the decision to revoke that land" to accept the plaintiff's lawsuit initiation request was not in accordance with the actual land use, did not fully rely on the supporting documents and testimonies of all parties leading to damage for the defendant who was the current continuous land user.

The Chief Prosecutor of the People's Procuracy of Quang Nam province issued Decision No. 14/QDKNPT-VKS-DS on July 6, 2021 requesting the higher court to amend the first-instance civil judgment mentioned above in a direction that does not accept all of Ms. Lam Thi H's lawsuit initiation requests.

In the appellate civil judgment No. 220/2021/DS-PT dated November 26, 2021 of the Higher People's Court in Da Nang, it was decided:

Accepting Decision No. 14/QD-KNPT-VKS-DS on July 6, 2021 of the Chief Prosecutor of the People's Procuracy of Quang Nam province and accepting the appeal of Mr. Lam Van Dung. Amending the first-instance civil judgment No. 29/2021/DS-ST dated June 24, 2021 of the People's Court of Quang Nam province. Declaring:

Not accepting the lawsuit initiation of Ms. Lam Thi H regarding the request to cancel the Land Use Rights Certificate, ownership rights of residential houses, and other assets attached to the land issued by the Department of Natural Resources and Environment of Quang Nam province to Mr. Lam Van Dung under number cc 832765 on July 14, 2016, and the request to compel Mr. Lam Van D to return the land area of 520 square meters (actual measurement 529.4 square meters) for plot number 218, map sheet number 16, in Thanh Tam D hamlet, Cam Thanh commune, Hoi An city, Quang Nam province.

Furthermore, the appellate judgment also addressed the costs of on-site inspection, property valuation, land dispute surveying costs, and appellate court fees.

3. Issues to draw experience:

The origin of the disputed land (plot number 560, map sheet number 5, area of 520m2) was previously used by Ms. Lam Thi H's parents before 1975, then abandoned until 1975. Ms. Pham Thi Dien used it as a residence for a period and then stopped living there. Ms. H claimed that Ms. D demolished the house, handed over the land to Ms. H's family, but apart from Ms. D's verbal confirmation provided by Ms. H, there were no documents or evidence to prove that Ms. D transferred the disputed land to Ms. H. Furthermore, after Ms. D stopped using the land, Ms. H's family did not utilize the disputed land, and Mr. D became the person managing and using it until now; the community consultation record on December 12, 2019 indicated that the disputed land (plot number 560, map sheet number 5, now plot number 218, map sheet number 16, area of 520m2) was used by Ms. D from 1975 to 1978, then abandoned, and Mr. D used it, while Ms. H's family did not use it. Regarding Ms. H's statement that she asked Mr. D to manage the disputed land, which Mr. D did not acknowledge, Ms. H also did not provide evidence to support this claim; the entire property on the disputed land belongs to Mr. D's family and was established by Mr. D's family (evaluation record on October 27, 2020). Therefore, Ms. H's statements about Ms. D transferring the disputed land to Ms. H's family and Ms. H asking Mr. D to manage the disputed land are unfounded.

According to Mr. Lam Van D's statement, the land area of 529.4m2 in dispute, belonging to plot number 560, map sheet number 5 (now plot number 218, map sheet number 16), was assigned by the local authorities to Mr. D's family for management and production from after 1975 until now.

The statements of Mr. D were corroborated by witnesses: Ngo Q, Dang Thi Th, Tran Thi X, Tran Thi H, Truong Van H, Do Van H, Huynh Thi Nh, and Lam Huu T, who are neighboring households of the disputed plot number 560, map sheet number 5, all confirmed: "This land area was arranged by the Cam Thanh commune authorities for Mr. Lam Van Dung's family on the old garden of others; Mr. D's family reclaimed, lived, and cultivated flowers on it...," their testimonies align with the community consultation record on December 12, 2019, and the conclusions of the Cam Thanh commune People's Committee in the reconciliation records on July 25, 2016, and June 5, 2018: "After 1975, when the State rearranged land for the people, Mr. Lam D's land was registered under Mr. Lam D's name for land use rights," and "After 1975, when organizing population arrangements, the State granted the right to use the land to Mr. Lam D until now," which is consistent with Mr. D's family's registration of land use rights for the disputed land area: "Registered according to Directive 299/TTg, plot number 375, map sheet number 5, area of 547m2 of color land (Ms. Vo Thi Ch - Mr. D's mother's registration); registered according to Decree 64/CP, plot number 560, map sheet number 5, area of 520m2 of color land (Mr. Lam H - Mr. Lam Van D's registration); according to the new surveying documents 'VN2000 is plot number 218, map sheet number 16, area of 590m2 of color land used by Mr. D" (Information provided by the Cam Thanh commune People's Committee on April 12, 2021).

Therefore, Mr. Dung's household is the one assigned by the local authorities to use the land steadily, continuously, and fully registered according to the law. On the other hand, implementing Government Decree 64/CP dated September 27, 1993, on allocating agricultural land to households and individuals for stable and long-term agricultural production purposes, plot number 560, map sheet number 5, with an area of 520m2 (color land) is designated for agricultural production, so Mr. D's household meets the conditions to be granted a Land Use Certificate as stipulated in Article 1 of the Land Law 1993; Article 1 and Clause 3 of Article 3 of Government Decree 64/CP dated September 27, 1993: "Households and individuals are allocated agricultural land by the State for stable long-term use for agricultural production" and "Land allocated to households and individuals under this Regulation is formal and granted a Land Use Certificate for stable long-term use."

Mr. Lam Van D was granted a Land Use Right Certificate with number E 0255650 on October 18, 1994, by the People's Committee of Hoi An town (now Hoi An city) with a total area of 1,220m2, including plot number 560 (now plot number 218), map sheet number 5 (now map sheet number 16), with an area of 520m2 in Cam T commune, Hoi An city, Quang Nam province, issued by the Department of Natural Resources and Environment of Quang Nam province on July 14, 2016, in accordance with Clause 4 of Article 95, Clause 3 of Article 105 of the Land Law 2013.

Mr. Lam Van D has been using the land steadily, continuously, openly for 35 years, while Ms. Lam Thi H has not used the land, the first-instance court ruled that the disputed land area was managed and used by Ms. H's family, and the Hoi An city People's Committee issued the Land Use Right Certificate to Mr. D on October 18, 1994, without carrying out the land recovery for Ms. H, which is not in line with the reality and not in accordance with Article 2 of the Land Law 1993 of Vietnam. Therefore, the trial council accepted the Prosecutor's protest and Mr. Lam Van D's appeal, overturning the entire first-instance judgment.

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