Approval of Judgment 182/2019/DS-PT dated March 18, 2019 on the dispute over the division of common property as land use rights of the People's Court of Ho Chi Minh City will clarify the above issue.
“In 2001, Mr. D contributed money to buy 500 m2 of land out of a total of 2,118 m2 that T bought from Mr. H for 330,000 VND/m2. Mr. D contributed 165,000,000 VND, equivalent to an area of 500m2. Mr. D and Mr. T are siblings.
In the process of buying land Mr. D and Mr. T have an agreement for Mr. T to represent the purchase and sale and have his name on the land use right certificate. Mr. D determined that he had delivered the amount of VND 165,000,000 to Mr. T in two installments: the first phase delivered 20,000,000 VND; The second phase of communication is 145,000,000 VND. After buying the land, Mr. D asked Mr. Q to pour the land for sweet potatoes and grass to raise cows.
In 2004, when the paperwork was completed, the brothers were still at peace and still agreed to let the defendant's name always be on the LURC for an area of 500m2. On May 31, 2004, The People's Committee of District A issued the Land Use Right Certificate No. 283/QSDD/Q4 to Mr. T. During the land use process, in 2008 there was a conflict between the brothers and the incident lasted until the date. On November 5, 2012 and on December 1, 2012, Mr. D and Mr. T made a joint land purchase agreement with 02 witnesses, Mr. P and Ms. V (Head of the 91st residential group, Ward D, District E). However, since that time Mr. D has asked Mr. T to split the plot and pay him 500m2 of the 2,118 m2 purchased together, but Mr. T did not do so. Now Mr. D continues to ask the defendant to be responsible for separating the parcel to pay 500m2, because this is the plaintiff's private property, bought together in an area of 2,118m2 with the defendant ".
- Accepting the request for division of common property in parts and the request for recognition of land use rights of Mr. Banh Ngoc D for an area of 500m2 of land at the LURC No. 283/QSDD/Q4 dated May 31, 2004 issued by the District People's Committee A, TP. issued by Ho Chi Minh City in the name of Mr. Banh Ngoc T;
- Mr. Banh Ngoc D has the right to contact the real estate agent to request a LURC with the name Banh Ngoc D for an area of 500m2, separated from the Land Use Right Certificate No. 283/QSDD/Q4 dated May 31 2004 issued by the People's Committee of District A to Mr. Banh Ngoc TU
Firstly, the law recognizes the case of joint ownership of land and houses.
According to the provisions of Clause 2, Article 98 of the 2013 Land Law of Vietnam as follows:
Article 98: Principles of grant of certificates of land use rights and ownership of houses and other land-attached assets
2. For a land parcel which is used by several land users or for the houses and other land-attached assets which are owned by several owners, the names of all involved persons shall be recorded in the certificate, and each person shall be granted one certificate. At the request of the land users or owners, only one certificate may be granted to all of them and delivered to the representative.
Secondly, although only Mr. T is named on the LURC, that property was purchased jointly by Mr. D and Mr. T, and the agreement in the names of the two people has been agreed, so that land area is still the common property of both. and the registration on the LURC.
Compare with the provisions in Clause 3, Article 5 of Circular No.23/2014/TT-BTNMT of Vietnam
Article 5. Information about land users and owners of land-attached assets is displayed on page 1 of the Certificate
In case a land parcel has many organizations, households and individuals using the same land and jointly owning assets attached to the land, there is a written agreement to issue a Certificate to the representative (notarized or authenticated as prescribed by law), the Certificate will be issued to that representative. On the Certificate, write the information of the representative as prescribed in Clause 1 of this Article, the next line reads "As the representative of the people who jointly use the land (either jointly owning land-attached assets or jointly using land and jointly owning land-attached assets) including:... (names of persons co-using land and assets attached to land respectively)
In addition, according to the provisions of article 209 of the Civil Code 2015 as follows:
Article 209. Ownership in common
- Ownership in common is multiple ownership whereby each owner's share of the ownership rights with respect to the multiple ownership property is specified.
- 2. Each of the owners in common has rights and obligations with respect to the multiple ownership property corresponding to its share of the ownership rights, unless otherwise agreed.
Therefore, the person who has a share of the property under common ownership has the right to his previous part of the property based on the grounds proving that the contribution forms this property.
The biggest problem when buying shared land is the exploitation of land use rights or when determining land use rights. Because this is a property under joint ownership, when wanting to transfer the land use right or use it for other purposes than agreed upon, the person in need must obtain the consent of other capital contributors.
In order to limit the risk of joint purchase of real estate, the parties must clearly agree in writing. In which, the contents should be clearly stated, including: issues of management, use and disposition of common property; contribution, ownership percentage of each party; write the names of the parties (if there is only one representative, there must be a written agreement on this).