Precedent No. 07/2016/AL

Precedent No. 07/2016/AL on house sale and purchase contracts before July 1, 1991 was adopted by the Council of Judges of the Supreme People's Court on October 17, 2016 and promulgated under Decision No. 698/QD-CA dated October 17, 2016 of the Chief Justice of the Supreme People's Court.

Source of case law:

Final judgment No. 126/2013/DS-GDT dated September 23, 2013 of the Council of Judges of the Supreme People's Court on the civil case "Dispute over ownership and use of houses" in Hanoi city between the plaintiffs Mr. and Mrs. Nguyen Dinh Song, Nguyen Thi Hong, Nguyen Thi Huong and the defendants Mr. and Mrs. Do Trong Thanh, Do Thi Nguyet, Vuong Chi Tuong, Vuong Chi Thang, Vuong Bich Van, Vuong Bich Hop; persons with related rights and obligations including Mr. and Mrs. Nguyen Thi Lan, Nguyen Thi Hay, To Thi Lam, Nguyen Dinh Uan, Nguyen Thi Hop, Nguyen Dinh Hoa, Nguyen Thi Minh Nguyet, Tran Thi Bich, Vu Dinh Hau.

Location of case law:

Paragraph 4 of the “Considering” section of the above cassation decision.

Overview of the case law:

- Case law:

The house sale contract was made in writing before July 1, 1991, signed by the seller, clearly stating that the seller had received the full payment, the buyer, although not yet signed the contract, was the contract holder and had managed and used the house stably for a long time without the seller having any dispute over the house purchase price.

- Legal solutions:

In this case, the contract is valid to determine that the buyer has paid the seller in full and the buyer's will agrees to the house sale contract, the house sale contract is recognized.

Legal provisions relating to precedents:

– Articles 81, 82, 83 of the 2004 Civil Procedure Code (corresponding to Articles 93, 94, 95 of the 2015 Civil Procedure Code);

– Resolution No. 58/1998/NQ-UBTVQH10 dated August 20, 1998 of the National Assembly Standing Committee on civil transactions on housing established before July 1, 1991.

CASE CONTENT

In the petition dated March 6, 2006 and during the settlement of the case, the plaintiff, Mr. Nguyen Dinh Song, stated:

His father was Nguyen Dinh Chien (died in 1998), his mother was Nguyen Thi Mo (died in 2005). His parents had 4 children including him, Mrs. Nguyen Thi Hong, Mrs. Nguyen Thi Huong, Mrs. Nguyen Thi Lan. Previously, his family lived at 2 Hang Bun, and his uncle, Nguyen Dinh Nhuan, lived at 10 Hang Bun. When he returned from evacuation, his uncle's house was taken by the State and given to someone else to use, so his father gave house at 2 Hang Bun to Mr. Nhuan to live in, his family rented a house, Mr. Do Trong Thanh was the one who signed the contract for his father to rent the 2nd floor of house 19 Thuoc Bac street on February 1, 1972.

House 19 Thuoc Bac is owned by 05 siblings of Mr. Thanh including Mr. Do Trong Thanh, Mrs. Do Thi Nga, Mrs. Do Song Toan, Mrs. Do Thi Nguyet, Mr. Do Trong Cao. Because Mr. Cao needed money for medical treatment, he sold a 38m² room on the 2nd floor of house 19 Thuoc Bac to his family. The contract Mr. Cao signed for sale did not state the date, the selling price was 6550 VND, Mr. Cao received the full amount.

When Mr. Cao sold the 38m2 room, he gave his father the house contract at 19 Thuoc Bac. The contract clearly stated that Mr. Cao was entitled to 8/12 of the house, while Mr. Thanh, Mrs. Nga, Mrs. Nguyet, and Mrs. Toan were entitled to 4/12 of the house; the first floor of the house at 19 Thuoc Bac was previously sold by Mr. Thanh's brothers to Mr. Vu Dinh Tiep and his wife, Mrs. Tran Thi Bich; Mr. Cao renovated the 7m2 kitchen on the second floor to live in.

After Mr. Cao died on November 5, 1972, Mr. Thanh, Mrs. Nga, and Mrs. Nguyet signed a contract to sell the remaining 7 square meters of the second floor of house 19 Thuoc Bac to his family for 3,000 VND, and the seller legalized it with a contract to sell the entire second floor on November 5, 1972, the day Mr. Cao died. Mr. Thanh and his brothers signed the document stating that the seller had received the full payment.

Mr. Thanh also handed over Mr. Cao's power of attorney dated September 9, 1972, stating that Mr. Cao was the owner of house 19 Thuoc Bac, and that due to illness, he had written the power of attorney in case it was lost, so that Mr. Thanh could replace Mr. Cao in selling the ancillary room at house 19 Thuoc Bac. The sale documents for the 2 second-floor rooms at house 19 Thuoc Bac were kept by his family, so his parents could sign these documents at any time. Mr. Thanh said that it was incorrect for his parents to not sign the sale documents, claiming that they had not paid.

Mr. Nhuan died in 2000. Mr. Nhuan's wife, Ms. To Thi Lam, and Mr. Nhuan's children, Mr. and Mrs. Nguyen Dinh Uan, Nguyen Dinh Hoa, Nguyen Dinh Hop, and Nguyen Thi Minh Nguyet, all confirmed that Mr. Chien bought the second floor room from Mr. Cao, not Mr. Nhuan. Mr. Nhuan was only the person in charge.

Mr. Thanh's family (living at 17 Thuoc Bac) always made life difficult for his family. Mr. Thanh occupied the roof of the 2nd floor of house 19 Thuoc Bac, so his father went to discuss with Mr. Thanh that he could not use the roof, but Mr. Thanh did not listen, so both sides were forced to have a document dated December 20, 1987 agreeing to let Mr. Thanh use the roof together, but the two families increasingly had conflicts. After that, his family went to register the transfer of ownership of the 2nd floor of house 19 Thuoc Bac, but Mr. Thanh always made life difficult. Now he requests the Court to recognize the contract of sale of the 2nd floor of house 19 Thuoc Bac.

In addition, he also requested the following issues:

- Mr. Thanh sold the first floor of house 19 Thuoc Bac to Mr. Tiep's family, the second floor was sold to his family, so Mr. Thanh no longer has any rights to house 19 Thuoc Bac, therefore Mr. Thanh cannot use the roof of the second floor and the annex of house 19 Thuoc Bac.

- His family bought the 2nd floor, at that time there was an oral agreement that the way out to the street was through the first floor of Mr. Thanh's house at 17 Thuoc Bac, so he asked Mr. Thanh not to leave goods on the path from Hang Ca street to go through houses 17, 19 Thuoc Bac to the 2nd floor of house 19 Thuoc Bac.

- Request Mr. Thanh to compensate for damages due to occupying the roof and using the walkway to store goods from 1987 to present with the amount of 540,000,000 VND (2,500,000 VND/month x 18 years).

- Compensation for injuries to you and your wife caused by Mr. Thanh's son is 5,000,000 VND/person.

- Compensation for mental damage caused by Mr. Thanh's dispute causing instability to his family's life, the amount is 800,000,000 VND.

- Mr. Thanh has to pay for the cost of renovating his roof because he left his belongings damaged, the estimated cost of repair is 120,000,000 VND.

- The prolonged lawsuit caused Mr. Thanh to lose his job, so Mr. Thanh must pay 108,000,000 VND (12,000,000 VND/year x 9 years).

The defendant, Mr. Do Trong Thanh, stated:

House 19 Thuoc Bac has land contract number 1577 Dong Xuan area, area 69m² owned by Mr. Do Huy Ngoc and Mrs. Le Thi Huu (Mr. Song's parents); on April 21, 1959, the name was transferred to the children to inherit, specifically: Mr. Cao received 8/12, the remaining 4 children, Mrs. Nga, Mrs. Nguyet, Mrs. Toan and he jointly received 4/12 of the house. In 1971, his siblings rented the 2nd floor of house 19 Thuoc Bac to Mr. Chien and his wife (Mr. Song's parents). Later, also in 1971, Mr. Cao sold a 38m² room at house 19 Thuoc Bac to Mr. Nguyen Dinh Nhuan, but Mr. Chien signed the sale paper on his behalf, the selling price was 6,550 VND, the paper did not state the date.

On September 9, 1972, Mr. Cao authorized him to sell a 7.8m² room on the 2nd floor of house 19 Thuoc Bac. On November 5, 1972, Mr. Cao died. Based on Mr. Cao's authorization, he wrote a paper to sell the 7m² room to Ms. Chien, but Ms. Chien asked him to write the 38m² room that Mr. Chien had bought from Mr. Cao, so he wrote a document to sell the 2nd floor, his sisters signed the document, but when the document was given to Mr. Chien and Mr. Mo to sign, Mr. Nhuan was there and scolded him and did not allow Mr. Chien and his wife to sign, so Mr. Chien and his wife could not sign. He did not agree to Mr. Song's request because Mr. Song was only staying at Ms. Nhuan's house.

Mr. Thanh also had another statement, specifically: Mr. Cao sold 01 room but he did not know until 1998 and only then did he know that he had a part in this house, before that he understood that the house belonged to Mr. Cao. Mr. Cao authorized him to sell the 07m2 room, in the sales contract it was written that the buyer had received the house, the seller had paid the money, but agreed that the buyer would sign before paying the money.

Mr. Cao's authorization to him was wrong because this was the common property of several siblings; the house at 19 Thuoc Bac he had not declared because it was still under dispute; the house at 17 Thuoc Bac he had declared was based on his right to receive it according to the inheritance division judgment in 1992. The paper Mr. Cao sold the house of 38m² to Mr. Nhuan, he estimated, was written around 1971. He only kept the original copy of Mr. Cao selling the house to Mr. Nhuan, and did not keep the other documents. When selling the house to Mr. Nhuan, Mr. Cao gave the house contract at 19 Thuoc Bac to Mr. Nhuan.

He did not agree with Mr. Song's request because there was no sale of the second floor of house 19 Thuoc Bac, Mr. Song's parents had not signed the sale and purchase papers and had not paid; the house sale contract was illegal, so Mr. Song had no right to claim the roof of the second floor; the passage through the first floor of house 17 Thuoc Bac, Mr. Song only used it for a ride (Bl 586). His siblings did not sell the ancillary area of ​​house 19 Thuoc Bac, so he still had the right to use it. He also did not accept Mr. Song's request for compensation for loss of income because Mr. Song was the one who disputed, not him. There were injuries on both sides in the fight, and the police did not resolve anything, so he did not agree to pay compensation.

On April 7, 2009, Mr. Thanh filed a counterclaim requesting that Mr. Song's family must have access to the street on the area of ​​house 19 Thuoc Bac, meaning that the first floor of house number 19 Thuoc Bac must have access to the street for Mr. Song's family. House 17 Thuoc Bac belongs to him, when his siblings sold the first floor of house 19 Thuoc Bac to Mr. Tiep's family, they also clearly stated that it was the same area as the current living area, minus the access.

On September 23, 2009, Mr. Thanh filed a request to withdraw the counterclaim regarding the passage.

Ms. Do Thi Nguyet and Ms. Do Thi Nga's children, Vuong Chi Tuong, Vuong Chi Thang, Vuong Bich Van, and Vuong Bich Hop, filed a petition stating: Mr. Cao wrote to sell the 38m2 room, but the house is co-owned so they have no rights. Ms. Nga and Ms. Nguyet signed to sell the 7m2 room to Mr. Chien but the buyer has not paid yet so they request to return the house.

Persons with related rights and obligations:

- Mrs. To Thi Lam presented: Her husband is Mr. Nguyen Dinh Nhuan (died in 2000). Previously, she and her husband lived at 10 Hang Bun Street, and Mr. Chien and his wife lived with her and her husband. In 1970, Mr. Chien and his wife moved to house number 19 Thuoc Bac. She does not know how Mr. Chien and his wife bought the house, she only remembers that in 1972, Mr. Nhuan came back to tell her that Mr. Chien bought the house and asked Mr. Nhuan to be the owner. House number 19 Thuoc Bac was bought and paid for by Mr. Chien and his wife, she and her husband did not participate in the transaction with Mr. Thanh, and her family also has no rights related to house number 19 Thuoc Bac.

- Mr. Lam's children, Mr. Nguyen Dinh Uan, Mr. Nguyen Dinh Hoa, Mrs. Nguyen Quynh Hop, and Mrs. Nguyen Thi Minh Nguyet, agreed with Mr. Lam's testimony.

- Ms. Tran Thi Bich and Mr. Vu Dinh Hau stated: They are living on the first floor of 19 Thuoc Bac. Mr. Thanh has no right to request that her family open a passage for Mr. Song's family on the second floor; Mr. Thanh has submitted a request to withdraw the counterclaim regarding the passage, and they have no comments.

In the Civil Judgment at First Instance No. 78/DSST dated November 21, 2007, the People's Court of Hanoi City decided:

Uncle requested by Mr. Nguyen Dinh Song.

On November 21, 2007, Mr. Nguyen Dinh Song filed an appeal.

In the Civil Appeal Judgment No. 121/2008/DSPT dated June 30, 2008, the Appeal Court of the Supreme People's Court in Hanoi decided: To annul the first instance judgment and re-settle the case at the first instance.

In the Civil Judgment at First Instance No. 52/2009/DSST dated September 29, 2009, the People's Court of Hanoi City decided:

1. Not accept the plaintiff's request to recognize the contract for sale of the entire 2nd floor of the house at 19 Thuoc Bac.
2. Accept Mr. Song's request to force Mr. Thanh to move all furniture and ornamental plants on the roof of the 2nd floor of house 19 Thuoc Bac to house 17 Thuoc Bac.

Mr. Thanh's family and Mr. Song's family used the roof of the second floor of house 19 Thuoc Bac as committed on December 20, 1987.

3. Do not accept Mr. Song's request not to allow Mr. Thanh's family to use the auxiliary area and yard at 19 Thuoc Bac.
4. Determine the path from Hang Ca Street to the two land areas of houses 17 and 19 Thuoc Bac. No one is allowed to leave goods or items that obstruct the passage.
5. Do not accept Mr. Song's request for compensation for damages against Mr. Thanh.
6. Reject other requests of the parties.
7. Suspend the settlement of Mr. Thanh's counterclaim.

On October 1, 2009, Mr. Nguyen Dinh Song filed an appeal disagreeing with the decision of the Court of First Instance.

On October 12, 2009, Mr. Do Trong Thanh filed an appeal disagreeing with the decision of the Court of First Instance regarding the walkway, requesting that this walkway be determined to be temporary.

In the Civil Appeal Judgment No. 86/2010/DS-PT dated May 18, 2010, the Appeal Court of the Supreme People's Court in Hanoi decided: Uphold the first instance judgment on the settlement of the house sale and purchase contract and other requests, partially annul the first instance judgment and re-assign the first instance to resolve the matter of the passage through house 17 Thuoc Bac.

On July 20, 2010, Mr. Nguyen Dinh Song filed a request for review, requesting recognition of the contract for sale of the 2nd floor of house 19 Thuoc Bac.

In Decision No. 148/2013/KN-DS dated April 11, 2013, the Chief Justice of the Supreme People's Court appealed the Civil Appeal Judgment No. 86/2010/DS-PT dated May 18, 2010 of the Court of Appeal of the Supreme People's Court in Hanoi; requested the Council of Judges of the Supreme People's Court to review the case on final judgment to annul the above Civil Appeal Judgment and the Civil Judgment at First Instance No. 52/2009/DS-ST dated September 29, 2009 of the People's Court of Hanoi; and transfer the case file to the People's Court of Hanoi for retrial at first instance in accordance with the provisions of law.

At the appeal hearing, the representative of the Supreme People's Procuracy requested the Council of Judges of the Supreme People's Court to accept the appeal of the Chief Justice of the Supreme People's Court, but in the direction of annulling the Civil Appeal Judgment No. 86/2010/DS-PT dated May 18, 2010 of the Supreme People's Court of Appeal in Hanoi, and handing over the case to the Court of Appeal for retrial.

The Council of Judges of the Supreme People's Court determined:

According to the statements of the plaintiff, defendant and documents in the case file, the house at 19 Thuoc Bac Street, Hang Bo Ward, Hoan Kiem District, Hanoi, owned by Mr. Do Huy Ngoc and Mrs. Le Thi Huu, was transferred to their children, Mr. Do Trong Cao (died in 1972, no wife or children) to receive 8/12 of the shares, the remaining shares were shared by Ms. Do Thi Nga (aka Nga), Ms. Do Thi Nguyet, Ms. Do Thi Song Toan (died in 1963, no husband or children), and Mr. Do Trong Thanh to receive 4/12 of the shares.

On July 1, 1971, Mr. Thanh signed a contract for the family of Mr. Nguyen Dinh Nhuan (Mr. Nguyen Dinh Song's uncle, who died in 2000) and Mr. Nguyen Dinh Chien and his wife (Mr. Song's father, who died in 1998) to rent a room on the second floor of house 19 Thuoc Bac street, area 39.36m² to get money to treat Mr. Cao, and received 2000 VND in advance.

In the “Deed of sale of a room” (no date, month, year, but Mr. Thanh admitted that this document was written around 1971), Mr. Cao sold to Mr. Nhuan a room on the 2nd floor of the house at 19 Thuoc Bac street (no area) for 6,550 VND, the seller received the full payment, and stated that Mr. Chien represented the sale and signed on behalf of Mr. Nhuan. Mr. Thanh said that this house for sale was the rented house mentioned above and was sold to Mr. Nhuan, not to Mr. Chien.

However, Mrs. To Thi Lam and Mr. Nguyen Dinh Uan, Nguyen Dinh Hoa, Nguyen Quynh Hop, Nguyen Thi Minh Nguyet (Mr. Nhuan's wife and children) all confirmed that Mr. Chien directly transacted and paid, and that Mr. Nhuan only stood in for Mr. Chien on the house purchase contract sold by Mr. Cao. Therefore, there is a basis to determine that Mr. Chien was the buyer of this room.

On September 9, 1972, Mr. Cao wrote a power of attorney for Mr. Thanh to sell the annex room where Mr. Cao was living. On November 5, 1972, Mr. Cao died without leaving a will. On the same day, November 5, 1972, Mr. Thanh, Mrs. Nga, and Mrs. Nguyet signed the "Document for the sale of the 2nd floor of house number 19, Thuoc Bac street" with the content of selling to Mr. Chien and his wife the main room of 38.07m², the annex room of 7.095m², totaling 45.165m², for 3,000 VND. The seller had received the full payment, the buyer had accepted to use the area of ​​the 2nd floor and was living there; the document had 3 people, including Mr. Thanh, Mrs. Nga, and Mrs. Nguyet as the seller, while the buyer wrote the names of Mr. Chien and Mr. Mo but did not sign.

During the dispute, Mr. Song presented the two documents of house sale mentioned above and the paper authorizing Mr. Cao to Mr. Thanh to sell the house. In fact, Mr. Chien's family has managed both rooms on the second floor of house 19 Thuoc Bac street of Mr. Thanh's family since 1972, Mr. Thanh's family living at house 17 Thuoc Bac street next door did not dispute the demand for rent or house purchase money.

The content of the “Deed of sale of the second floor of No. 19 Thuoc Bac Street” clearly states that the seller has received the full payment, there is no agreement between the two parties to make a separate payment receipt, this is the receipt in which the seller confirms that the buyer has paid. The buyer has not signed the sale document, but the buyer is the keeper of this document, so it is still valid to determine the seller's obligation to have received the money. The court of first instance and the appellate court held that the buyer had not signed the house sale document and could not prove that he had paid the money, so the plaintiff's request to recognize the house sale contract was not guaranteed.

The housing transaction between Mr. Thanh's siblings and Mr. Chien and Mr. Mo's couple was established before July 1, 1991, so it is necessary to apply Resolution 58/1998/NQ-UBTVQH10 dated August 20, 1998 of the National Assembly Standing Committee to resolve the case. Ms. Nguyen Thi Lan (Mr. Chien and Mr. Mo's daughter) participated in the proceedings as a person with related rights and obligations because she was an heir to the estate of Mr. Chien and Mr. Mo but did not participate in this transaction.

Ms. Lan has only settled in the Czech Republic since 1997. This sale and purchase is not a housing transaction before July 1, 1991 with the participation of a person residing abroad before July 1, 1991. Therefore, the Court of First Instance and the Court of Appeal based on Resolution 1037/2006/NQ-UBTVQH11 dated July 27, 2006 on civil transactions on housing established before July 1, 1991 with the participation of a Vietnamese person residing abroad to resolve the case is incorrect.

For the above reasons, pursuant to Clause 3, Article 291, Clause 3, Article 297, Clause 2, Article 299 of the Civil Procedure Code (amended and supplemented by Law No. 65/2011/QH12 dated March 29, 2011 of the National Assembly);

DECISION

Annul the entire Civil Appeal Judgment No. 86/2010/DS-PT dated May 18, 2010 of the Appeal Court of the Supreme People's Court in Hanoi on the case of "Dispute over ownership and use of houses" between the plaintiffs Mr. Nguyen Dinh Song, Ms. Nguyen Thi Hong, Ms. Nguyen Thi Huong and the defendants Mr. Do Trong Thanh, Ms. Do Thi Nguyet, Mr. Vuong Chi Tuong, Mr. Vuong Chi Thang, Ms. Vuong Bich Van, Ms. Vuong Bich Hop; people with related rights and obligations including 09 people.

Transfer the case file to the Supreme People's Court of Appeal in Hanoi for re-trial according to the provisions of law.

CONTENT OF PRECEDENT

“During the dispute, Mr. Song presented the two documents of house sale mentioned above and also the paper authorizing Mr. Cao to Mr. Thanh to sell the house. In fact, Mr. Chien's family has managed both rooms on the second floor of house 19 Thuoc Bac street of Mr. Thanh's family since 1972, Mr. Thanh's family living at house 17 Thuoc Bac street next door did not dispute the demand for rent or house purchase money.

The content of the “Deed of sale of the second floor of No. 19 Thuoc Bac Street” clearly states that the seller has received the full payment, there is no agreement between the two parties to make a separate payment receipt, this is the receipt in which the seller confirms that the buyer has paid. The buyer has not signed the sale document, but the buyer is the keeper of this document, so it is still valid to determine the seller's obligation to have received the money. The court of first instance and the court of appeal held that the buyer had not signed the house sale document and could not prove that he had paid the money, so the plaintiff's request to recognize the house sale contract was not guaranteed.

Major