The case of losing land when letting others use their land in Vietnam

Typically in the Judgment 03/2018/DS-ST dated February 6, 2018 on reclaiming encroached land, according to which:

Mr. Nguyen Q is the biological father of Mr. Nguyen L. The People's Committee of Ph town, Ninh Thuan province granted a land use right certificate (red book) on February 3, 1993 for plot 536 with an area of ​​400m2 and plot 535 with an area of ​​1,284. m2. In 1998, the State redrew the technical dossier of the land plot, combining 02 plots into plot 119 with an area of ​​1,596.5m2, including plot 247 with an area of ​​23.8m2 of the disputed land. But plot 247 with an area of ​​​​23.8m2 has been encroached on and used by Ms. Le Thi M's family since 2009, so plaintiff Mr. Nguyen L sued to claim it back.

Defendant Ms. Le Thi M disagreed with the plaintiff's claim because plot 16 has an area of ​​28.6m2, now parcel 247 with an area of ​​23.8m2 is the property of her grandfather named Le B, reclaimed from In 1972, her family managed to use it over 40 years, now Mr. Nguyen L's family is in dispute.

The trial panel said that Mr. Pham Thach A's request to dig a ditch on plot 18 in 1984 and Mr. Dinh A's request to install a water pipe and a water pump on plot 16 in 1995, all of them asked for the consent of Mrs. Le Thi M's family and the consent of Mrs. M's family, while Mr. Nguyen L's family lived next door but for a long time still had no opinion. In addition, on the disputed land plot, there is a jackfruit tree planted over 30 years, the plaintiff claims that it was planted by Mr. Nguyen Q but admitted that the jackfruit was used by Mrs. M's family.

This proves that Mr. B and Mrs. M have honestly, openly and continuously owned the land plot for more than 30 years. 

The trial panel decided: Not to accept the petition of plaintiff Mr. Nguyen L to reclaim 23.8m2 of agricultural land in parcel 247 managed and used by Ms. Le Thi M.

The 2015 Civil Code of Vietnam stipulates bona fide, public and continuous possession of real estate as follows:

“Article 236. Establishment of ownership rights resulting from prescriptive periods with respect to possession or deriving benefits from property unlawfully

A person unlawfully but in good faith possessing, or deriving benefits from, property continuously and in an overt manner for ten (10) years with respect to the moveable property, and for thirty (30) years with respect to immovable property, shall become the owner of such property from the moment of commencement of possession, unless otherwise prescribed by this Code and relevant laws."

"Article 180. Possession in good faith

Possession in good faith means the possession that the possessor has bases to believe that he/she has the right to the property under his/her possession."

“Article 182. Continuous possession

1. Continuous possession means possession that is carried out over a period of time without a dispute over the right to that property or with a dispute but not yet resolved by a legally effective judgment or decision. the law of a court or other competent state agency, even when the property is handed over to someone else to possess.”

"Article 183. Overt possession

1. Possession of the property shall be deemed to be overt possession when it occurs in a transparent manner, without concealment; when property currently being possessed is used in accordance with its functions and usage and is preserved and retained by the possessor as if it were his or her own property."

It can be seen that for the case in the above judgment, although Mr. Nguyen L's family was granted a red book in 1993, it did not exploit as well as take any measures to force Mrs. M's household not to partially exploit land with an area of ​​​​23.8m2 in the land parcel that has been granted the certificate of his family. Therefore, when Mr. L filed a lawsuit in 2016 to demand that Ms. M return the encroached land, the law protected Ms. M because she had possessed it in good faith, continuously and openly for more than 30 years, so Mr. L could not ask Mrs. M to return the land.

It is thought that any land plot, even though it has been granted a red book, must always take measures to protect the land from being exploited by others for too long to avoid the case of loss of land to an honest third party as in the above judgment.