Precedent No. 04/2016/AL

Regarding the case of "Dispute over land use rights transfer contract"

Approved by the Council of Judges of the Supreme People's Court on April 6, 2016 and promulgated under Decision No. 220/QD-CA dated April 6, 2016 of the Chief Justice of the Supreme People's Court.

Source of case law

Final judgment No. 04/2010/QD-HDTP dated March 3, 2010 of the Council of Judges of the Supreme People's Court on the case of "Dispute over land use rights transfer contract" in Hanoi city between the plaintiffs Ms. Kieu Thi Ty, Mr. Chu Van Tien and the defendant Mr. Le Van Ngu; the persons with related rights and obligations are Ms. Le Thi Quy, Ms. Tran Thi Phan, Mr. Le Van Tam, Ms. Le Thi Tuong, Mr. Le Duc Loi, Ms. Le Thi Duong, Mr. Le Manh Hai, Ms. Le Thi Nham.

Overview of case law

In case the real estate is the joint property of a married couple and only one person signs the contract to transfer the real estate to another person, the other person does not sign the contract; if there is sufficient basis to determine that the transferor has received the full amount of money as agreed, the person who did not sign the contract knows and uses the money for the real estate transfer together; the transferee of the real estate has received and managed and used the real estate publicly; the person who did not sign the contract knows but does not object, it must be determined that that person agrees to the transfer of the real estate.

Legal provisions relating to precedents

- Clause 2, Article 176 of the 1995 Civil Code;

- Article 15 of the 1986 Law on Marriage and Family.

Keywords of case law

“Disputes over land use rights transfer contracts”; “Determining common property of spouses”; “Establishing ownership rights by agreement”.

Contents of the case

In the petition dated November 5, 2007 and during the case settlement process, the plaintiff, Ms. Kieu Thi Ty, stated:

In 1996, the couple bought 2 level 4 houses on a residential land area of ​​about 160m2 ^from Mr. Le Van Ngu's family in Xuan La commune, Tu Liem district, Hanoi city (now Group 11, Cluster 2, Xuan La ward, Tay Ho district, Hanoi city). The two parties signed a contract for the sale, clearly stating the assets, houses on the land and the adjacent sides of the land. Because the couple did not have permanent residence in Hanoi, the local government did not confirm the sale between her family and Mr. Ngu's family. The purchase price was 110 taels of gold, she paid in full to Mr. Ngu's couple and Mr. Ngu's family handed over the house and land to her to manage and use.

After buying and selling the land, Mr. Ngu's family built a new house and borrowed the house (inside) from Mrs. and Mrs. Ngu to use and store materials. As for the area of ​​the house facing Xuan La Street, she let her nephews stay there so they could go to school. When Mr. Ngu's family finished building the house, they returned the house and land to Mrs. Ngu. She demolished the old house, raised the foundation and built a new house as it is now for her nephews to live in; in 2001, she rented it out as a carpentry workshop, but then she stopped renting it out and closed it down without using it.

In 2006 (after she imported to Hanoi), when she applied for documents on house ownership and land use rights, Mr. Ngu and his wife made it difficult, because they thought that she still owed more than 3 taels of gold and that they only sold the house and land inside, while the house and land facing Xuan La Street were still his family's house and land. At the end of 2006, Mr. Ngu broke the door to move in and built a wall between the porch of the level 4 house facing Xuan La Street (currently rented to someone else as a barber shop). She requested the Court to force Mr. Ngu's family to perform as per the signed contract and force Mr. Ngu's family to return the house and land (the area facing Xuan La Street).

The defendant, Mr. Le Van Ngu, stated:

In 1996, his family sold part of the house and land to Mr. Tien and Mrs. Ty. The two parties agreed that his family would sell to Mr. Tien and Mrs. Ty the house and land adjacent to Xuan La Street, 7m wide, the entire length of his family's land. The two parties agreed to deduct 21m2 ^of the road frontage because the State had set up boundary markers for road opening, so only the ground-floor house on the land area of ​​140m2 would be ^sold .

The price to buy the house and land is 6 taels of gold/m2 ^for 42m2 ^of land facing the street, which is 25.02 taels; 9 taels/m2 ^for 98m2 ^of land inside, which is 88.2 taels of gold. The total is 113.4 taels of gold, Mr. Tien and Mrs. Ty have just paid his family 110 taels of gold, still owing 3.4 taels of gold.

His family has transferred the house and land to Mrs. Ty, but the remaining 21 square meters ^adjacent to the road, within the road opening boundary, his family still manages and uses. Currently, the State has changed the planning, not opening a road towards his family's house and land, so this area is under the management and use of his family, the area of ​​the house and land that Mr. Tien and Mrs. Ty bought has no access.

Now, Mrs. Ty sued to claim 21m2 ^of Xuan La street frontage, but he did not accept. If Mr. Tien and Mrs. Ty want to manage and use the street frontage and have access to the house and land inside, they must cut back to his family 2m of the street frontage and the entire length of the land, and must pay his family another 160 million VND.

Persons with related rights and obligations:

Ms. Tran Thi Phan agreed with Mr. Ngu's statement.

Mr. Le Duc Loi, Mr. Le Van Tam, Mr. Le Manh Hai, Ms. Le Thi Duong, Ms. Le Thi Tuong and Ms. Le Thi Nham had statements consistent with Mr. Ngu's statement.

In the Civil Judgment at First Instance No. 27/2008/DS-ST dated April 25, 2008, the People's Court of Hanoi City decided:

Accept the lawsuit request to reclaim the 23.4m2 house and land ^at 39 Xuan La Street of Mrs. Kieu Thi Ty and Mr. Chu Van Tien against the family of Mr. Le Van Ngu and Mrs. Tran Thi Phan.

Force the family of Mr. Le Van Ngu, Ms. Tran Thi Phan, Ms. Le Thi Quy (tenants) and Mr. Le Van Ngu's children to return the entire land area of ​​23.4 square meters ^at No. 39, Xuan La Street, Xuan La Ward, Tay Ho District to the family of Ms. Ty and Mr. Tien (represented by Ms. Ty).

Force Ms. Ty to pay Mr. Ngu's family the amount of 13,759,000 VND for the construction and renovation value of an area of ​​23.4 ^{square meters} ; Ms. Ty is entitled to own the materials and labor in this area.

Mrs. Ty was allowed to open the entrance to the land area inside and built a wall to block the back path to Mr. Ngu and Mrs. Phan's land.

Mr. Ngu, Ms. Phan and Ms. Ty are responsible for going to the competent state agency to complete the procedures for transferring the ownership of the sold house and land. If Mr. Ngu's family causes difficulties, Ms. Ty can proactively go to the competent state agency to declare and complete the procedures for transferring the ownership, registering the house ownership and land use rights.

In addition, the Court of First Instance also decides on court fees and declares the parties' right to appeal.

On May 8, 2008, Mr. Le Van Ngu and Ms. Tran Thi Phan filed an appeal requesting the Court of Appeal to declare the house and land transfer contract signed with Ms. Kieu Thi Ty and Mr. Chu Van Tien null and void on the grounds that the signing of the contract and receipt of money for the house and land purchase were only performed by Mr. Ngu, and his wife, Ms. Phan, did not know.

In Decision No. 02/QD-VKSNDTC-VPT1 dated May 28, 2008, the Chief Justice of the Supreme People's Procuracy appealed to the Trial Council of the Supreme People's Court of Appeal in Hanoi to conduct an appeal trial, forcing Mr. Ngu to dismantle the illegal construction on Ms. Ty's land and house to restore it to its original state. Ms. Ty does not have to compensate Mr. Ngu the amount of VND 13,759,000; at the same time, requested a review of the first instance civil court fees for Mr. Ngu and Ms. Ty.

In the Civil Appeal Judgment No. 162/2008/DS-PT dated September 4, 2008, the Court of Appeal of the Supreme People's Court in Hanoi decided not to accept the appeal of Mr. Le Van Ngu and Ms. Tran Thi Phan, accepted the Appeal Decision No. 02/QD-VKSNDTC-VPT1 dated May 28, 2008 of the Supreme People's Procuracy, and partially amended the First Instance Judgment as follows:

Accept the request to reclaim the house and land with an area of ​​23.4 square meters ^at No. 39 Xuan La Street of the couple Kieu Thi Ty and Mr. Chu Van Tien against the couple Le Van Ngu and Ms. Tran Thi Phan.

Force Mr. Ngu, Mrs. Phan and their children, including brothers Le Duc Loi, Le Van Tam, Le Manh Hai and sisters Le Thi Duong, Le Thi Tuong, Le Thi Nham and Mrs. Le Thi Quy (Mr. Ngu's tenant) to return the entire area of ​​the house and land of 23.4 square meters ^at No. 39 Xuan La Street, Xuan La Ward, Tay Ho District, Hanoi City to the couple Kieu Thi Ty and Mr. Chu Van Tien (represented by Mrs. Ty).

Regarding the construction and renovation cost of the 23.4m2 area, ^which is 13,759,000 VND, Mr. Le Van Ngu and Mrs. Tran Thi Phan must bear it themselves. Mr. Ngu and Mrs. Phan must demolish the construction and renovation part of the above area to return it to its original state for Mrs. Ty and Mr. Tien. The demolition cost must be borne by Mr. Ngu and Mrs. Phan.

Mrs. Ty has the right to proactively open the entrance to the house and land area inside and to build a wall to block the back entrance to the house and land of Mr. Ngu and Mrs. Phan.

Mr. Ngu, Ms. Phan and Ms. Ty are responsible for going to the competent state agency to complete the procedures for transferring the name of the house and land area that was sold to Ms. Ty and Mr. Tien. If Mr. Ngu's family causes difficulties, Ms. Ty can proactively go to the competent state agency to declare and complete the procedures for transferring the name of the land use rights and house ownership rights.

In addition, the Court of Appeal also decides on court costs.

After the appeal hearing in the complaints dated October 21, 2008 and October 22, 2008 of Mr. Ngu and Ms. Phan, both stated that the house and land at 39 Xuan La Street is the common property of their families; Mr. Ngu arbitrarily sold it to Ms. Ty and Mr. Tien without Ms. Phan's consent, which is incorrect; it is proposed to declare this contract invalid.

In Decision No. 63/QD-KNGDT-V5 dated May 14, 2009, the Chief Justice of the Supreme People's Procuracy appealed the above-mentioned appellate judgment and requested the Council of Judges of the Supreme People's Court to review the case according to the cassation procedure, annul the above-mentioned civil appellate judgment and annul the first-instance civil judgment No. 27/2008/DS-ST dated April 25, 2008 of the Hanoi People's Court; and transfer the case file to the Hanoi People's Court for retrial. With the following opinion:

In 1996, Mr. Chu Van Tien and Mrs. Kieu Thi Ty bought two level 4 houses on residential land adjacent to Xuan La street with a width of 7m, the entire length of the land of Mr. Le Van Ngu's family in Xuan La commune, Tu Liem district (now Xuan La ward, Tay Ho district). The two parties made a handwritten paper to buy and sell the land, but then did not carry out the procedures according to the provisions of law. After the purchase, Mrs. Ty demolished both houses to rebuild, raised the floor, rebuilt the foundation, and tiled the walls as they are today. At the end of 2005, when Mrs. Ty requested to apply for documents on house ownership and land use rights, Mr. Ngu's family disputed that Mrs. Ty still owed 3.4 taels of gold and only sold the area of ​​the house and land inside, while the area of ​​the house and land adjacent to Xuan La street was still his family's house and land.

At the end of 2006, the two sides had a fight over a 21m2 land area ^on Xuan La Street, Tay Ho District, Hanoi City.

On October 29, 2007, Ms. Kieu Thi Ty and Mr. Chu Van Tien filed a lawsuit to claim ownership of the land through the land sale contract established on April 26, 1996 between Mr. Le Van Ngu and his wife, Ms. Tran Thi Phan, and Ms. Kieu Thi Ty and his wife, Mr. Chu Van Tien. The land sale contract between Ms. Ty and Mr. Tien and Mr. Ngu and Ms. Phan did not comply with the provisions of the law in both the form and content of the contract; while Mr. Ngu's family claimed that Mr. Tien and Ms. Ty still owed 3.4 taels of gold and did not sell the land area facing Xuan La Street; therefore, Mr. Ngu and Ms. Phan did not agree to let Mr. Tien and Ms. Ty complete the procedures to transfer the ownership of the land and land use rights according to the provisions of the law. Currently, the entire land area under the above sale and transfer contract is still in the name of Mr. Ngu and Ms. Phan.

The two-instance and appellate court determined that the disputed legal relationship in this case was “Dispute over ownership of real estate” and applied Articles 255 and 256 of the Civil Code to accept the request to reclaim the real estate of the couple Kieu Thi Ty and Mr. Chu Van Tien against the couple Le Van Ngu and Ms. Tran Thi Phan, which was incorrect. Thus, it is natural to recognize the ownership of the house and the right to use residential land for the entire area of ​​the transferred real estate to the couple Ty and Mr. Tien; while the real estate transfer contract above is still in dispute, it is not possible to carry out the procedures for transferring the name, registering the ownership of the house and the right to use residential land for the couple Ty and Mr. Tien. Therefore, it is necessary to annul both the above civil judgments at first instance and appellate; and re-arrange the first instance trial to correctly determine the disputed legal relationship, ensuring the rights of the parties and the interests of the State.

At the appeal hearing, the representative of the Supreme People's Procuracy requested the Supreme People's Court's Judicial Council to accept the appeal of the Chief Justice of the Supreme People's Procuracy.

Court opinion

Based on the petition dated November 5, 2007 and the statements of Ms. Ty and Mr. Tien during the settlement of the case, Ms. Ty and Mr. Tien requested Mr. Ngu and Ms. Phan to return the entire house and land that they had received from Mr. Ngu and Ms. Phan and were currently occupying, and at the same time requested Mr. Ngu and Ms. Phan to remove the illegal construction on the above land area. Thus, the plaintiff has a request to claim ownership of the house and land that Mr. Ngu and Ms. Phan transferred under the house and land transfer contract dated April 26, 1996. Meanwhile, Mr. Ngu and Ms. Phan claim that the disputed land is still theirs, because they have not transferred it to Ms. Ty and Mr. Tien. Therefore, there is a basis to determine that the parties are in dispute over property ownership and a dispute over a house and land transfer contract, but the Court of First Instance and the Court of Appeal only determined that the legal relationship to be resolved is a dispute over house and land ownership, which is not sufficient. However, in reality, the Court of First Instance and the Court of Appeal have considered and resolved these two disputes. Therefore, the Protest No. 63/QD-KNGDT-V5 dated May 14, 2009 of the Chief Justice of the Supreme People's Procuracy stated that the Court of First Instance and the Court of Appeal incorrectly determined the disputed legal relationship and that it was necessary to annul both of the above judgments for retrial under the first instance procedure, which is incorrect and unnecessary.

Regarding the house and land sale contract dated April 26, 1996: The transfer of the house and land took place in 1996. After buying the house and land, Mr. Tien and Mrs. Ty paid in full, received the house and land, raised the ground, repaired the house and let their children live there. Meanwhile, Mr. Ngu and Mrs. Phan's family still lived on the remaining land area, adjacent to Mr. Tien and Mrs. Ty's house. According to the statements of Mr. Ngu and Mrs. Phan's children, after selling the house and land to Mrs. Ty and his wife, Mr. Ngu and Mrs. Phan divided the gold among their children. On the other hand, after transferring and handing over the house and land to Mr. Tien and Mrs. Ty, on April 26, 1996, Mr. Ngu also wrote a "commitment paper" stating that he would borrow the transferred house and land to live in when rebuilding the house on the remaining land. In fact, Mrs. Phan and Mr. Ngu used the house and land of Mrs. Ty and Mr. Tien when building the house. Thus, there is a basis to determine that Ms. Phan knew about the transfer of the house and land between Mr. Ngu and Mr. Tien and Ms. Ty's couple, Ms. Phan agreed and carried it out together, so Ms. Phan's complaint that Mr. Ngu transferred the house and land to Ms. Ty's couple without her knowledge is baseless.

During the process of resolving the case, Mr. Ngu and Ms. Phan also claimed that the purchase price of the house and land was 113.4 taels of gold. However, they did not provide any documents to prove this issue. According to the content of the house and land sale contract dated April 26, 1996, the amount agreed upon by both parties was 110 taels of gold and in the payment paper dated May 9, 2000, Mr. Ngu signed to confirm that "I have received the remaining amount from the sale of the house and land to Mr. Tien and Ms. Ty...". The note also stated that the total amount of gold I have received before and now is 110 taels. Thus, there is enough basis to affirm that the purchase price of the house and land was 110 taels of gold and that Mr. Ngu and Ms. Phan have received the full amount.

Although the above real estate sale contract did not specify the area of ​​the transferred land, the two parties clearly agreed on the boundary of the four sides: "the width of the land is 07m from the edge of the wall separating it from Mr. Tay's house; the Northeast borders Xuan La - Xuan Dinh street; the Southeast borders Mr. Le Van Tay's land; the Southwest borders the land of Ms. Le Thi Soat and Mr. Vinh; the Northwest borders the remaining land of Mr. Ngu's family. The length of the land borders Xuan La - Xuan Dinh street to the end of the land area...".

In addition, the parties also agreed that when the State uses the land in front to build a road, Mr. Tien will enjoy the full compensation regime of the State. Thus, the land that the two parties agreed to transfer is from the edge of Xuan La - Xuan Dinh road to the entire land area, including the disputed land area.

Therefore, the Courts at all levels determined that the area of ​​23.4 square meters ^adjacent to Xuan La - Xuan Dinh Street is within the land area that Mr. Ngu agreed to transfer to Mrs. Ty and her husband, and at the same time determined that Mrs. Ty and her husband had paid 110 taels of gold according to the contract and had received the house and land, from which, forcing Mr. Ngu's family to return the entire area of ​​the house and land of 23.4 square meters ^at No. 39 Xuan La Street, Xuan La Ward, Tay Ho District, Hanoi City to Mrs. Kieu Thi Ty and Mr. Chu Van Tien is well-founded.

For the above reasons, based on Clause 3, Article 291, Clause 1, Article 297 of the Civil Procedure Code,

Decision

Not accepting Protest No. 63/QD-KNGDT-V5 dated May 14, 2009 of the Chief Justice of the Supreme People's Procuracy; upholding Appeal Judgment No. 162/2008/DS-PT dated September 4, 2008 of the Court of Appeal of the Supreme People's Court in Hanoi.

Case law content

“ Regarding the house and land sale contract dated April 26, 1996: The transfer of the house and land took place in 1996. After purchasing the house and land, Mr. Tien and Mrs. Ty paid in full , received the house and land, raised the ground, repaired the house and let the children live there . Meanwhile, Mr. Ngu and Mrs. Phan's family still lived on the remaining land area, adjacent to Mr. Tien and Mrs. Ty's house . According to the statements of Mr. Ngu and Mrs. Phan 's children , after selling the house and land to Mrs. Ty and her husband , Mr. Ngu and Mrs. Phan divided the gold among their children. On the other hand, after transferring and handing over the house and land to Mr. Tien and Ms. Ty, on April 26, 1996, Mr. Ngu also wrote a "commitment paper" stating that he would borrow the transferred house and land to live in when rebuilding the house on the remaining land, and in fact, Ms. Phan and her husband, Mr. Ngu, used the house and land of Ms. Ty and Mr. Tien when building the house. Thus, there is a basis to determine that Ms. Phan knew about the transfer of the house and land between Mr. Ngu and Mr. Tien and his wife, Ms. Ty, and Ms. Phan agreed and carried it out together , so Ms. Phan's complaint that Mr. Ngu transferred the house and land to Ms. Ty and her husband was unfounded."

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