Lessons from Dispute over land use rights and request for annulment of a separate decision

1. Summary of the case contents

The parents of Mrs. Lam Thi H are Mr. Lam Dui (died 1967) and Mrs. Nguyen Thi Tham (died 1968) has created a land for housing since 1947 with a land area of 1,200 square meters. After the liberation in 1975, the authorities of Marble Commune announced the call for citizens to return to the old garden for housing and production to stabilize their lives. At this time, Mr. Lam Van Dung (grandson of Mrs. Hay) used the garden of Mrs. Hay's parents as a house with a land area of 700 square meters, the remaining area of 520 square meters of land behind the authorities of Marble Commune assigned Mrs. Pham Thi Dien for housing.

In 1981, Mrs. H returned to see that the garden of his parents had been occupied by Mr. D and Mrs. D, the couple of Ms. H exchanged and Mrs. D accepted to demolish the house and return the land; the area of 700 square meters Mr. D was using, the brothers of Ms. H agreed to let Mr. D stay and look after the garden. According to Ms. H's opinion, he had made an appointment with Mr. D. "When the State announced the land declaration, she was called to declare the registration' but Mr. D did not make and supported Mr. D to declare the registration. However, this content is not documented, they are justified and not acknowledged by Mr. D.

For the household of Mr. Lam Van Dung who used the land after the release date, the land was registered under Directive 299/TTg and Decree 64/CP. On October 18, 1994, the People's Committee of Hoi An Town (now Hoi An City) issued the Certificate of Land Use Rights No. E 0255650 with an area of 1,220 square meters, map sheet No. 05 for his family.

Due to the demand for residential land (there are 09 people at the moment), in November 2015, Mr. Lam Van Dung filed a request to change the land use purpose at the land plot No. 218 (former 560), map sheet No. 16 (former 05), an area of 520 m2 from other perennial planting land into land in the countryside. On December 25, 2015, the People's Committee of Hoi An Town issued Decision No. 1171/QD-UBND allowing Mr. D's household to be transferred for land use purposes with an area of 200 square meters of long-term residential land and 320 square meters of other annual tree planting land. On July 14, 2016, the Department of Natural Resources and Environment of Quang Nam province granted a LURC to him at plot 218, with an area of 520 square meters.

On July 25, 2016, the People's Committee of Cam Thanh commune mediated the land dispute between Mrs. Lam Thi H and Mr. Lam Van Dung, the involved parties acknowledged that the disputed land area of 520 square meters in the land plot 560, map No. 05, which originated before 1975 was used by Mr. Lam Dui; after 1975, the State arranged the land for the people, this land plot was used by Mr. Lam Van Dung (he called Mr. Lam Dui by his uncle), living on this land and granted a LURC until now.

2. The process of settlement of cases

In the first-instance Civil Judgment No. 29/2021/DS-ST dated June 24, 2021 of the People's Court of Quang Nam province pronounced:

Accept the petitioner's request to sue Ms. Lam Thi H.

Cancellation of the LURC issued by the Department of Natural Resources and Environment of Quang Nam province to Mr. Lam Van D's household on July 14, 2016 for the land plot No. 218, map No. 16, area 520 square meters, in Thanh Tam D village, Mar Thanh commune, Hoi An city, Quang Nam province. Force Mr. Lam Van Dung to return the land of 529.4 m2 (actual measurement) of the land plot No. 218, map sheet No. 16, address: Thanh Tam D village, Cam Thanh commune, Hoi An city, Quang Nam province to Ms. Lam Thi H (with a map attached).

Ms. Lam Thi H must refund the value of architectural objects including: Fences, trees and money transferred from other annual planting land to the land in the countryside with an area of 200m2 for Mr. Lam Van Dung with a total amount of 63,789,800 VND”. The judgment also declares the defamation judgment and the right of appeal of the involved parties.

Appeal: On July 7, 2021, Mr. Lam Van Dung, who is the defendant in the appeal case, said that: The first-instance judgment dated June 24, 2021 of the People's Court of Quang Nam province based on Article 21 of the 1993 Land Law "The decision to allocate land being used by another person is only conducted after the decision to recover such land" to accept the plaintiff's lawsuit claim is not in accordance with the actual land use, not based on sufficient evidentiary documents and testimonies of the parties leading to damage to the defendant who is an immediate and continuous land user.

The Procurator General of Quang Nam People's Procuracy issued Appellate Appeal Decision No. 14/QDKNPT-VKS-DS dated July 6, 2021 requesting the Court of Appeal to amend the above-mentioned first-instance civil judgment in the direction of not accepting the entire lawsuit petition of Ms. Lam Thi H.

At the Appellate Civil Judgment No. 220/2021/DS-PT dated November 26, 2021 of the Superior People's Court in Da Nang decided:

Accepting the Appellate Appeal Decision No. 14/QD-KNPT-VKS-DS dated July 6, 2021 of the Director of Quang Nam People's Procuracy and accepting the appeal of Mr. Lam Van Dung. Amendment to the first-instance Civil Judgment No. 29/2021/DS-ST dated June 24, 2021 of the People's Court of Quang Nam province. Verdict:

The petition of Ms. Lam Thi H about the request to cancel the Certificate of land use rights, ownership of houses and other land-attached assets issued by the Department of Natural Resources and Environment of Quang Nam province to Mr. Lam Van Dung's household No. 832765 dated July 14, 2016 and the request to force Mr. Lam Van D to return the land of 520 square meters (measuring 529.4 square meters) for the land plot No. 218, map No. 16, in Thanh Tam D village, Cam Thanh commune, Hoi An city, Quang Nam province is not accepted.

In addition, the appellate judgment also pronounced on the cost of on-site appraisal, property valuation and the cost of measuring the disputed land, and pronounced on the appellate court fee.

3. Issues to learn

The origin of the disputed land plot (land plot No. 560, map No. 5, area 520 square meters) was used by Ms. Lam Thi H's parents before 1975, then abandoned until 1975, Ms. Pham Thi Dien used as a house for a time and no longer lives. Ms. H said that Ms. D dismantled the house, handed over the land to Ms. H's family, in addition to the confirmation provided by Ms. D, Ms. H did not have documents and evidence to prove that Ms. D returned the disputed land to Ms. H. Moreover, after Ms. D does not use the land, Ms. H's family also does not use the disputed land area that Mr. D has been the user manager so far; In the Minutes of residential consultation dated December 12, 2019, it shows that the disputed land area (land plot No. 560, map sheet No. 5 is now land plot No. 218, map sheet No. 16 with an area of 520 square meters) used by Ms. D from 1975 to 1978, Ms. D did not live and abandoned; then Mr. D used, Ms. H's family did not use. For Ms. H's testimony that Ms. H asked Mr. D to manage the disputed land was not acknowledged by Mr. D, Ms. H also could not produce evidence to prove that the entire property on the disputed land area is owned by Mr. D's family and created by Mr. D's family (Minutes of appraisal review dated October 27, 2020). Therefore, Ms. H's statement that Ms. D returned the disputed land to Ms. H's family and Ms. H asked Mr. D to manage the disputed land is unfounded.

According to Mr. Lam Van D's testimony, the disputed land area of 529.4 square meters belongs to the land plot No. 560, map No. 5 (now the land plot No. 218 map No. 16) assigned by the local authorities to Mr. D's family to manage and produce from 1975 until now.

Mr. D's testimony was 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 are the adjacent households of the land plot No. 560, map No. 5 is in dispute, all identified: "This land area was arranged by the authorities of Marble Thanh commune for Mr. Lam Van Dung's family on the old garden of other people; Mr. D's family was the one who unearthed, lived and cultivated the flowers..", testimonies of witnesses in accordance with the Minutes of collecting residential area opinions on 12/12/2019, in accordance with the conclusions of the People's Committee of Cam Thanh commune in the Minutes of conciliation on 25/7/2016 and 05/6/2018: "After 1975, the State arranged land for residents, Mr. Lam D's land plot was named by Mr. Lam D as land use right ’’ and "After 1975, the organization'' on residential arrangement granted to Mr. Lam D's household for use since then is also suitable for his family D) Declaration of land use right registration for disputed land area: "Registration of declaration according to Directive 299/TTg, land plot No. 375, map No. 5, 547 square meters of colored land type (Ms. Vo Thi Ch - his mother D declares); registration and declaration according to Decree 64/CP, land plot No. 560, map No. 520 square meters of colored land type (declared by Mr. Lam H - Mr. Lam Van D); according to the new measurement dossier ' VN2000 is plot No. 218, map No. 16, 590 square meters of colored land type used by Mr. D" (Information sheet on land of Cam Thanh Commune People's Committee dated April 12, 2021)."

Thus, Mr. Use's household is the person who is allocated the land by the local government to Mr. D for stable and continuous land use and full registration according to the provisions of law. On the other hand, implementing the Government's Decree No. 64/CP dated September 27, 1993 on the allocation of agricultural land to households and individuals for stable and long-term use for agricultural production purposes, the parcel No. 560, map No. 5, the area of 520 square meters (colored land) is the agricultural production land, so Mr. D's household is eligible to issue a land use right certificate as prescribed in Clause 1 Article 2 of the 1993 Land Law; Articles 1 and 3 Article 3 of the Government's Decree No. 64/CP dated September 27, 1993: "Households and individuals assigned by the State to stable agricultural land for long-term use for agricultural production purposes" and "Land assigned to households and individuals under this Regulation is officially assigned and granted a long-term stable land use right certificate" 

Mr. Lam Van D's household was granted a certificate of land use right by the People's Committee of Hoi An Town (now the People's Committee of Hoi An City) No. E 0255650 dated 18/10/1994 with a total area of 1,220 square meters, including a land plot No. 560 (the new land plot is No. 218), map sheet No. 5 (the new map sheet is No. 16), an area of 520 square meters in Cam T commune, Hoi An city, Quang Nam province, which was granted by the Department of Natural Resources and Environment of Quang Nam province in return for the Land Certificate, the ownership right of housing on July 14, 2016 is in accordance with Clause 4, Article 95, Clause 3, Article 105 of the Land Law 2013.

Mr. Lam Van D's household has used the land steadily, continuously and publicly for 35 years, Ms. Lam Thi H did not use the land but the Court of First Instance found that the disputed land area managed and used by Ms. H's family and the People's Committee of Hoi An City issued a land use right certificate to Mr. D's household on October 18, 1994, not implementing the land acquisition of Ms. H was not in accordance with the reality and not in accordance with the provisions of Article 2 of the 1993 Land Law of Vietnam. Therefore, the trial panel accepted the protest of the Director of Quang Nam Provincial People's Procuracy and the appeal of Mr. Lam Van D, correcting the whole first-instance judgment.

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