20/12/2022 16:07

Vietnam: Is it possible to lose land when allowing other people to live on it for a long time?

Vietnam: Is it possible to lose land when allowing other people to live on it for a long time?

Most people believe that once their land is theirs, it is forever theirs, even if they allow others to live on it. However, does it always work like that?

Typically, in Judgment 49/2018/DS-PT dated March 23, 2018 on a dispute over land for accommodation, according to which:

"Origin of real estate: Mrs. Nguyen Thi Ch's parents, Mr. Nguyen S1 and Nguyen Thi H1, have a plot of land with an area of 3 sao 08 yards by 2 meters in group 9, area X, ward T, city Q, Binh Dinh province. In 1957, Mr. S1 and Mr. H1 gave Mrs. Ch. an area of 310 m2, and she built a cottage with an area of 10 m2. In 1960, Mr. Le Van A1 (the father of Mr. Le Van M) came to ask for a stay. The two sides did not confirm on any papers. In 1975, the house was dilapidated. Mrs. A1 repaired the house many times to expand the area and build a new house, and Mrs. Ch still agreed. Then Mr. A1 handed over the house and land to Mr. Le Van M for management and use. Around 1995, Ms. Ch repeatedly went to Mr. M to ask for her house back, but Mr. M did not pay; the disputed land plot is legally owned by Ms. Ch's family; and Mr. M surreptitiously went to register for the legal declaration of the above-mentioned land ownership rights."

The court determined: Ms. Nguyen Thi Ch's statement about letting Le Van A1 stay in the house is valid. However, considering the conditions of Mr. M's family, there are 19 members who have been living steadily for nearly 58 years on this land. Everyone was aware of and agreed upon the process of repairing and rebuilding Ms. Ch's house.Mr. M's rebuilding of a permanent house in 2009 and 2010 is based on the legally effective judgment of the Court; Mr. M is not at fault in building the house.

Therefore, the court ruled: "Forcing Mr. Le Van M and Ms. Nguyen Thi Ph2 to return 82.7 m2 of land (the land for perennial crops) to Ms. Nguyen Thi Ch." For the area of 118.8 m2, Mr. M built a permanent house, changed the land use purpose, and paid 50% of the land use fee. Therefore, he did not force Mr. Le Van M to return this land to Ms. Ch., but Mr. M only had to return 50% of the land value (118.8 m2) to Ms. Ch., equivalent to VND 503,118,000.

Thus, it can be seen that in Ms. Ch's case as above, Ms. Ch has lost part of her land (equivalent to 118.8 m2 divided by 2 = 59.4 m2) although she proved that Mr. M's family only stayed on her own land.

Civil Code 2015 stipulates the right to reclaim property as follows:

Article 166. The right to reclaim property

1. Owners and/or holders of other property-related rights shall have the right to request the persons possessing, using or receiving benefits from the property without a legal basis to return such property.

2. The owner of a property has no right to reclaim such property that is in the possession of a holder of other property-related rights.

The current law does not have any regulations that the person who gives permission to stay can only receive back a part of the value of the land when he has allowed others to stay for a long time, as in the above judgment.

There are still many questions about whether the above judgment is legal. To avoid potential risks, the accommodation provider should create a document outlining the accommodation, as well as specific obligations regarding the time of the accommodation and the mandatory obligation to return the land when the requesting party reclaims the land. 

Nguyen Sang

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