Specifically, through Judgment 465/2017/DSST of the People's Court of District 8, Ho Chi Minh City. Ho Chi Minh City on the dispute over the encroached land as follows:
“Ms. TT has been granted a certificate of land use rights and ownership of houses and other land-attached assets for land plot No. 552, map sheet No. 106, in Ward N, District J, Ho Chi Minh City, area 509.8m2, issue number BT 630398, entered into the certificate of issuance: CH04725 issued by the People's Committee of District J, Ho Chi Minh City on September 1, 2015. Ms. NT, who lives close to Mrs. TT's land, voluntarily built a tree house, with a corrugated iron roof encroaching on Mrs. TT's land. Mrs. TT asked Mrs. NT to dismantle and return the land to Mrs. TT but Mrs. NT did not agree. Ms. TT filed a lawsuit to force Ms. NT to dismantle the construction part and return the land that Ms. NT encroached on Ms. TT with an area of 21.1m2.
Pursuant to Article 166 of the 2013 Land Law of Vietnam, the general rights of land users are as follows:
Article 166. General rights of land users
1. To be granted the certificate of land use rights, houses and other land-related assets ownership.
2. To enjoy the results of the labor and investment on land.
3. To enjoy the benefits derived from facilities constructed by the State for protecting and improving agricultural land.
4. To receive the State’s guidance and assistance in the improvement and fertilization of agricultural land.
5. To be protected by the State against others’ infringements of their lawful rights and benefits related to land.
6. To receive compensation when land is expropriated by the State in accordance with this Law.
7. To complain about, denounce or file lawsuits over violations of their lawful land use rights and other violations of the land law.
In this case, Mrs. TT has the right to initiate a request to the Court to settle the dispute to reclaim the land in accordance with the law as analyzed above.
According to Article 12 of the 2013 Land Law of Vietnam, the prohibited acts are as follows:
Article 12. Prohibited acts
"1. Encroachment, occupation, destruction of land.
Therefore, arbitrarily building tree houses, corrugated iron roofs encroaching on Mrs. NT 's land has infringed on Ms. TT 's legitimate rights and interests. In principle, constructions on the encroached land will have to be demolished and returned to their original condition.
To ensure the interests of Mrs. TT, first of all, an agreement should be made with Ms. NT to return the encroached area. In case of failure to return the land, Ms. TT can send an application to the People's Committee of the commune where the land is located for mediation according to the provisions of Article 202 of the 2013 Land Law of Vietnam.
Article 202. Conciliation of land disputes
1. The State shall encourage the disputing parties to conciliate themselves or have theừ land disputes settled through grassroots conciliation.
2. In case the self-reconciliation fails, the parties may send a petition to the commune-level People’s Committee of the locality where the disputed land is located, for reconciliation.
3. Commune-level People’s Committee chairpersons shall organize conciliation of land disputes in their localities. In the process of conciliation, they shall coordinate with the commune-level Vietnam Fatherland Front Committee and its member organizations and other social organizations. The conciliation procedures carried out at the commune-level People’s Committees shall be completed within 45 days from the date the commune-level People’s Committees receive a petition for settlement of land dispute.
4. The conciliation process must be recorded in a written record with signatures of all parties and certified by the commune-level People’s Committee on the result, either a successful or unsuccessful conciliation. The conciliation minutes shall then be sent to the involved parties and archived at the commune-level People’s Committee concerned.
5. In case of successful conciliation which results in changes in the boundaries or land users, the commune-level People’s Committee shall send the conciliation minutes to the district-level Division of Natural Resources and Environment, for land disputes among households, individuals and communities, or to the provincial-level Department of Natural Resources and Environment, for other land disputes.
According to the provisions of Clause 1, Article 266 and Article 267 of the 2005 Civil Code:
- " Owners of adjoining immovable properties may put up boundary stakes, fences or partition walls only on the portion of land under their land use rights".
- "In cases where a boundary marker is put up on the boundary by only one party and with the consent of the owner of the adjoining immovable property, such boundary marker shall be under common ownership and the construction expenses shall be borne by the party who puts up the marker, unless otherwise agreed upon”.
Land is a complex issue and disputes over land are quite common types of disputes in life. Whether from a social or legal perspective, the best way to not lose feelings is to negotiate, reconcile, and find a solution that best ensures the rights and interests of the parties.