Precedent No. 14/2017/AL in Vietnam

Precedent Number 14/2017/AL on the recognition of conditions for the land use right gifting contract where such conditions are not mentioned in the contract

Passed by the Full Court of the Supreme People's Court of Vietnam on December 14, 2017, and published following Decision No. 299/QD-CA dated December 28, 2017 issued by the Chief Justice of the Supreme People's Court of Vietnam.

Source of the Precedent:

Supervisory Judgment No. 02/2011/DS-GDT dated January 17, 2011, of the Civil Court of the Supreme People's Court regarding the case "Request to cancel the land use right transfer contract" in Dien Bien province between the plaintiff, Mr. Quang Van P1, and the defendants, Mr. Quang Van P2 and Ms. Phan Thi V.

Position of the Precedent Content:

Paragraphs 10, 11, and 12 of the "Court's Remarks" section.

Summary of the Precedent:

- Precedent Situation:

The land use right gifting contract does not mention gifting conditions, but other related documents indicate that the parties have agreed upon the gifting conditions and the gifting conditions are legitimate.

- Legal Solution:

In this case, the court must recognize the conditions of the land use right gifting contract and determine that the land use right gifting contract is a conditional asset gifting contract.

Relevant Legal Provisions:

Article 125, Article 126, and Article 470 of the 2005 Civil Code (corresponding to Article 120, Article 121, and Article 462 of the 2015 Civil Code).

Precedent Keywords:

“Land use right gifting contract”; “Conditional civil transaction”; “Conditional asset gifting”.

CASE CONTENT:

In the lawsuit application dated December 27, 2006, dated January 10, 2007, and during the case resolution process, the plaintiffs, Mr. Quang Van P1 and Ms. Quang Thi N, stated:

In 2003, People's Committee of Dien Bien province granted him 72m2 of land along National Highway 279 (under Decision No. 1487 dated September 25, 2003). On December 24, 2003, he processed the transfer of land use rights to Mr. Quang Van P2 and Ms. Phan Thi V (his son and daughter-in-law) for the mentioned area. On December 6, 2003, he made another contract transferring housing land use rights to Mr. Quang Van P2 and Ms. Phan Thi V for the mentioned area, with the confirmation of the People's Committee of T Ward, City P, Dien Bien province.

In 2005, there was a dispute over this land area between him and Ms. Quang Thi N (his daughter), so in Appellate Civil Judgment No. 08/DSPT dated August 24, 2005, Dien Bien Province People's Court ordered Ms. Quang Thi N to return the mentioned land area to him.

On June 12, 2006, People's Committee of City P, Dien Bien province issued a land use right certificate to him.

On October 27, 2006, he made a gifting contract with Mr. Quang Van P2 (his son) under the condition that Mr. Quang Van P2 must build a house for him to live in.

When he completed the title transfer procedures as per the gifting contract, Mr. Quang Van P2 did not build the house as promised but asked him to move to commune-level town M, G district. He hence requested the cancellation of the land gifting contract as Mr. Quang Van P2 and Ms. Phan Thi V did not adhere to the agreed conditions.

The defendants, Mr. Quang Van P2 and Ms. Phan Thi V, claimed: Mr. Quang Van P1 (their father) gifted them the mentioned land area when he was still mentally sound. Now, as Mr. Quang Van P1 is no longer mentally alert, Ms. Quang Thi N (Mr. P2's sister) forced Mr. Quang Van P1 to file a request to cancel the gifting contract. Their father gifted them the land without any conditions or commitments, so they do not accept the plaintiff's request.

In Primary Civil Judgment No. 03/2007/DSST dated June 30, 2007, Dien Bien Phu City People's Court, Dien Bien province decided:

Not to accept Mr. Quang Van P1’s request to cancel Land Use Right Transfer Contract No. 82 dated October 6, 2006, between Mr. Quang Van P1 as the transferor and Mr. Quang Van P2 and Ms. Phan Thi V as the transferees.

Moreover, the Primary Court also decided on legal fees and the involved parties’ appeal rights.

COURT'S OPINION:

[1] Upon filing the lawsuit and during the resolution of the case, Mr. Quang Van P1 claimed that on September 25, 2003, the People's Committee of Dien Bien Province granted him 72m2 of land at plot 2A, map sheet 289-IV-D-d, residential group 8, ward T, city P, Dien Bien province under Decision No. 1487.

[2] On December 06, 2003, Mr. Quang Van P1 made a document transferring the ownership of the land to Mr. Quang Van P2 and Ms. Phan Thi V, witnessed by the Secretary of the Party Cell and the Head of the Block, and confirmed by the People's Committee of ward T.

[3] On December 24, 2003, Mr. Quang Van P1 again made a "Request to Transfer Land Use Rights," transferring land use rights to Mr. Quang Van P2 and Ms. Phan Thi V, confirmed by the head of the block.

[4] However, the mentioned land area is currently being managed and used by Ms. Quang Thi N (Mr. Quang Van P1's daughter). In 2005, Mr. Quang Van P1 filed a lawsuit requesting Ms. Quang Thi N to return the mentioned land to him. In Appellate Civil Judgment No. 08/DSPT dated August 24, 2005, the People's Court of Dien Bien Province ordered Ms. Quang Thi N to return the land to Mr. Quang Van P1.

[5] On June 12, 2006, the People's Committee of city P, Dien Bien Province issued a certificate granting Mr. Quang Van P1 the right to use the aforementioned 72m2 of land.

[6] On September 15, 2006, Mr. Quang Van P1 submitted a request for confirmation of his authorization to Mr. Quang Van P2 and Ms. Phan Thi V to have full rights to "Own and use the land."

[7] On October 03, 2006, Mr. Quang Van P1 made an authorization contract for Mr. Nguyen Viet H to complete the procedures for gifting the said land to Mr. Quang Van P2, certified by Notary Office No. 3, Hanoi city.

[8] On October 06, 2006, Mr. Quang Van P1 again made a contract to transfer land use rights to Mr. Quang Van P2 and Ms. Phan Thi V, stating "Father gives to son" in the value section; the People's Committee of Dien Bien Phu City confirmed the contract number 82/HD-UBND on the same day, thus legalizing Mr. Quang Van P1's gift of land use rights to Mr. Quang Van P2 and Ms. Phan Thi V.

[9] On October 27, 2006, the People's Committee of city P issued a certificate of land use rights to Mr. Quang Van P2 and Ms. Phan Thi V.

[10] Therefore, if there is evidence that the competent State authority at the locality granted land to Mr. Quang Van P1 from 2003 (since the court at all levels has not gathered the land grant decision from 2003), then Mr. Quang Van P1 has the legal right to use the mentioned land from 2003, so he has the right to dispose of his property.

[11] However, Mr. Quang Van P1 claimed that his gift to Mr. Quang Van P2 and Ms. Phan Thi V was conditional on their building a house for him to live in, caring for him and his parents, but Mr. Quang Van P2 and Ms. Phan Thi V did not fulfill this commitment. Although Mr. Quang Van P2 did not acknowledge the conditional gift, the authorization letter dated March 25, 2006, suggested that Mr. Quang Van P1 authorized Mr. Quang Van P2 to apply for a construction permit... with the responsibility to build a house on plot 379B for Mr. Quang Van P1 to live in and to take care of elderly couple K (the parents of Mr. Quang Van P1). In the Commitment dated October 12, 2006, Mr. Quang Van P2 wrote, "... I received a land plot from my father... I make this commitment to the local authorities to build a house for my father and not to transfer it to anyone."

[12] Although the gift contract for land use rights did not specify the conditions, the above-mentioned documents indicated that Mr. Quang Van P2 had to build a house for Mr. Quang Van P1 to live in and take care of Mr. Quang Van P1 and his parents.

[13] Therefore, it is necessary to collect and verify whether Mr. Quang Van P2 fully met these conditions or not. During the time Mr. Quang Van P1 was receiving treatment in the hospital, who took care of him? Currently, Mr. Quang Van P2 and his wife are residing in Hanoi, so how have they fulfilled the conditions regarding Mr. Quang Van P1's parents? Based on the fulfillment of the conditions by Mr. Quang Van P2 and his wife, it should be determined whether the gift contract between Mr. Quang Van P1 and Mr. Quang Van P2 and his wife has been completed or not to resolve the case according to the law.

[14] Furthermore, according to Article 44 of the Land Law, the Department of Natural Resources and Environment does not have the authority to revoke land; therefore, the appellate court's recommendation for the Department of Natural Resources and Environment to revoke Mr. Quang Van P2's land use right certificate is not lawful.

[15] The Civil Judges' Council of the Supreme People's Court found that it is necessary to annul the appellate civil judgment and the first-instance civil judgment for a retrial according to the law.

[16] The decision to appeal by the Chief Justice of the Supreme People's Court is grounded.

[17] Pursuant to Clause 2, Article 291, Article 296, Clause 3, Article 297, Article 299 Civil Procedure Code.

DECISION:

1. Annul the Appellate Civil Judgment No. 14/2007/DSPT dated August 28, 2007, of the People's Court of Dien Bien Province and the First-Instance Civil Judgment No. 03/2007/DSST dated June 30, 2007, of the People's Court of Dien Bien Phu City, Dien Bien Province about the case "Request to annul contract transferring land use rights" between the plaintiff, Mr. Quang Van P1, and the defendants, Mr. Quang Van P2 and Ms. Phan Thi V.

2. Transfer the case dossier to the People's Court of Dien Bien Phu City, Dien Bien Province for a first-instance trial according to law.

PRECEDENT CONTENT

“[10] Therefore, if there is evidence that the competent State authority at the locality granted land to Mr. Quang Van P1 from 2003 (since the court at all levels has not gathered the land grant decision from 2003), then Mr. Quang Van P1 has the legal right to use the mentioned land from 2003, so he has the right to dispose of his property.

[11] However, Mr. Quang Van P1 claimed that his gift to Mr. Quang Van P2 and Ms. Phan Thi V was conditional on their building a house for him to live in, caring for him and his parents, but Mr. Quang Van P2 and Ms. Phan Thi V did not fulfill this commitment. Although Mr. Quang Van P2 did not acknowledge the conditional gift, the authorization letter dated March 25, 2006, suggested that Mr. Quang Van P1 authorized Mr. Quang Van P2 to apply for a construction permit... with the responsibility to build a house on plot 379B for Mr. Quang Van P1 to live in and to take care of elderly couple K (the parents of Mr. Quang Van P1). In the Commitment dated October 12, 2006, Mr. Quang Van P2 wrote, "... I received a land plot from my father... I make this commitment to the local authorities to build a house for my father and not to transfer it to anyone."

[12] Although the gift contract for land use rights did not specify the conditions, the above-mentioned documents indicated that Mr. Quang Van P2 had to build a house for Mr. Quang Van P1 to live in and take care of Mr. Quang Van P1 and his parents”.

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