Is it possible to divide the inheritance when the land does not have a red book in Vietnam?

Judgment 23/2017/DSPT dated September 25, 2017 on an inheritance dispute has the following contents:

“Dao Van D (died 1987) and Le Thi B (died 2013). They had eight children and when they died, neither of them left a will. The legacy the two left behind is a residential land plot in village A, commune B, district C, Hung Yen province, with an area of ​​about 1,500 m2, with a length of about 20m in the east; about 20m long in the west, about 80m long in the south; The north side is about 80 m long. This land plot is shown in plot 96, plot 97, map No. 6, and map 299 in 1987. The People's Committee of Commune B does not keep any papers and books showing that in 1986, Mr and Mrs. Dao Van D and Le Thi B were granted land by the People's Committee of Commune B in village A.

On May 5, 2016, Mr. T (child) filed a lawsuit requesting: Divide the entire estate of Mr. Dao Van D and Mr. Le Thi B.

The People's Court of Hung Yen province determined the origin of the land plot No. 96, 97 sheets of map No. 6, map 299:

In the map sheet No. 6, map 299 and the index book of map sheet 299 in 1987 managed by the People's Committee of Commune B, land plot No. 96, with an area of ​​​​704 m2, land type T, no use notes, and land plot 97 The People's Committee of Commune B determined: Mr. Dao Van D and Mr. Le Thi B have managed and used stably and continuously the above two parcels of land from before 1987 until their death and the People's Committee of Commune B since then have not any opinion. This entire land area is included in the new rural construction general planning and can be granted a land use right certificate in accordance with the law.”

The People's Court of Hung Yen province has accepted the plaintiff's request to initiate a lawsuit to divide the inheritance.

According to the principle that when having a certificate of land use right (red book), the new land user has all the rights and obligations of the land user, including the right to leave an inheritance. Without a red book, the exercise of rights will be difficult, but it does not mean that the land use right will be revoked.

According to the provisions of the Land Law 2013, in case a land user dies leaving an estate as an estate without having been granted a Certificate but inherits, the inheritance shall still be determined but must be based on the following documents: factors such as what kind of papers does the land user have, is there a stable use of the land, is there a dispute, etc. to determine if the land belongs to the inheritance?

Article 188. Conditions for the exercise of the rights to exchange, transfer, lease, sublease, inherit, donate or mortgage land use rights; to contribute land use rights as capital

1. Land users may exercise the rights to exchange, transfer, lease, sublease, inherit, donate or mortgage land use rights and contribute land use rights as capital when meeting the following conditions:

a/ Having the certificate, except the case prescribed in Clause 3, Article 186 and the case of receiving inheritance prescribed in Clause 1, Article 168 of this Law;

b/ The land is dispute-free;

c/ The land use rights are not distrained to secure judgment enforcement;

d/ Within the land use term.

2. ...

At Point a, Section 1.3, Part II of the Resolution No. 02/2004 dated August 10, 2004 of the Judicial Council of the Supreme People's Court, it is stipulated:

 …

“1.3. In case the deceased leaves behind the land use right but that land does not have one of the papers guided in subsection 1.1 and subsection 1.2 of this Section 1 but has a house as an estate; other architectural objects (such as kitchens, bathrooms, toilets, water wells, garages, churches...fruit trees, industrial plants or other perennial plants) associated with the right to use If that land requires inheritance, it is necessary to distinguish the following cases:

a) In case the involved parties have a document from the People's Committee of the competent level certifying that the land use is lawful, but the land use right certificate has not yet been issued, the court shall settle the request for division of the estate is the property attached to the land use right and the right to use that land”.

The land left by the deceased but has not yet been granted a Certificate of Use Right if there are other papers proving the origin of the land or the competent People's Committee has a document certifying that the land use is lawful. If the land is used stably and for a long time without any dispute, the Court will still determine this as an inheritance and proceed to divide the inheritance according to the order and provisions of law.

With the above provisions, it shows that the law is looking at the reality of land use rights. Issuing a book is a formal operation to create a premise for the state to manage and facilitate the exercise of land users' rights.