Precedent No. 14/2017/AL

On the recognition of conditions of a contract for donation of land use rights where such conditions are not stated in the contract

Adopted by the Council of Judges of the Supreme People's Court on February 14, 2017 and promulgated under Decision No. 299/QD-CA dated December 28, 2017 of the Chief Justice of the Supreme People's Court.

Source of case law

Final judgment No. 02/2011/DS-GDT dated January 17, 2011 of the Civil Court of the Supreme People's Court on the case "Request to cancel the land use rights transfer contract" in Dien Bien province between the plaintiff Mr. Quàng Văn P1 and the defendants Mr. Quàng Văn P2 and Ms. Phan Thi V.

Location of case law

Paragraphs 10, 11 and 12 of the “Court's Opinion” section.

Overview of case law

- Case law:

The land use rights donation contract does not state the donation conditions, but other relevant documents and materials show that the parties have agreed on the donation conditions and the donation conditions are legal.

- Legal solutions:

In this case, the Court must recognize the conditions of the land use rights donation contract and determine that the land use rights donation contract is a conditional property donation contract.

Legal provisions related to precedent:

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

Keywords of case law

“Contract for donation of land use rights”; “Conditional civil transaction”; “Conditional donation of property”.

Contents of the case

In the petition dated December 27, 2006, January 10, 2007 and during the settlement of the case, the plaintiffs, Mr. Quàng Văn P1 and Ms. Quàng Thị N, stated:

In 2003, the People's Committee of Dien Bien province granted him 72 square meters ^of land on National Highway 279 (according to Decision No. 1487 dated September 25, 2003). On December 24, 2003, he completed procedures to transfer land use rights to Mr. Quàng Văn P2 (his son) and Ms. Phan Thi V (his daughter-in-law) for the above land area. On December 6, 2003, he again signed a contract to transfer ownership of residential land to Mr. Quàng Văn P2 and Ms. Phan Thi V for the above land area, with confirmation from the People's Committee of Ward T, City P, Dien Bien Province.

In 2005, there was a dispute between him and Ms. Quàng Thị N (his daughter) over this land area, so in the Civil Appeal Judgment No. 08/DSPT dated August 24, 2005, the People's Court of Dien Bien province forced Ms. Quàng Thị N to return the above land area to him.

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

On October 27, 2006, he signed a gift contract with Mr. Quàng Văn P2 (his son) on the condition that Mr. Quàng Văn P2 must build a house for him to live in.

When he completed the transfer of ownership procedures according to the donation contract, Mr. Quàng Văn P2 did not build the house as promised and also asked him to move to town M, district G, so he requested to cancel the land donation contract because Mr. Quàng Văn P2 and Ms. Phan Thi V did not fulfill the conditions as committed.

The defendants, Mr. Quàng Văn P2 and Ms. Phan Thị V, stated: Mr. Quàng Văn P1 (his father) had given the above land area to him and his wife when Mr. Quàng Văn P1 was still lucid and sober. Now that Mr. Quàng Văn P1 is no longer lucid, Ms. Quàng Thị N (his sister) forced Mr. Quàng Văn P1 to file a petition to cancel the donation contract. The father gave him the land without any conditions or commitments, so it was not accepted according to the plaintiff's request.

In the Civil Judgment at First Instance No. 03/2007/DSST dated June 30, 2007, the People's Court of Dien Bien Phu City, Dien Bien Province decided:

Not accepting Mr. Quàng Văn P1's request to cancel land use rights transfer contract No. 82 dated October 6, 2006, between the transferor Mr. Quàng Văn P1, the transferee Mr. Quàng Văn P2, Ms. Phan Thi V.

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

In the Civil Appeal Judgment No. 14/2007/DSPT dated August 28, 2007, the People's Court of Dien Bien province decided to: Amend the First Instance Judgment No. 03/2007/DSST dated June 30, 2007 of the People's Court of Dien Bien Phu City, Dien Bien province.

Accept the appeal of Mr. Quàng Văn P1. Cancel the land use right transfer contract No. 82 dated October 6, 2006 between the transferor Mr. Quàng Văn P1 and the transferee Mr. Quàng Văn P2 for the land according to the land use right certificate No. AĐ 762/197, land plot 2A, map sheet 289 IV-Dd, residential group 8, ward T, city P, Dien Bien province.

Recommend to the Department of Natural Resources and Environment of P city, Dien Bien province to correct and restore the land use right certificate for the land user Mr. Quang Van P1, No. AD 762/197, land plot 2A, map sheet 289 IV-Dd, residential group 8, ward T, P city, Dien Bien province.

Recommend to the Department of Natural Resources and Environment of P city, Dien Bien province to revoke the land use right certificate for the person whose name is on the land use right certificate for Mr. Quang Van P2, number in the land use right certificate issuance book H 06445/QSDD. Decision on issuance number: 822/2006/QD-UBND dated October 27, 2006 for land plot number 2A, map sheet number 289-IV-Dd in residential group 8, ward T, P city, Dien Bien province.

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

After the appeal trial, Mr. Quàng Văn P2 filed a complaint requesting review under the cassation procedure for the above civil appeal judgment.

In Decision No. 579/2010/KN-DS dated August 26, 2010, the Chief Justice of the Supreme People's Court appealed against the Civil Appeal Judgment No. 14/2007/DSPT dated August 28, 2007 of the People's Court of Dien Bien province, requesting the Civil Court of the Supreme People's Court to review the case and annul the above civil appeal judgment and annul the Civil Judgment at first instance No. 03/2007/DSST dated June 30, 2007 of the People's Court of Dien Bien Phu City, Dien Bien province, and transfer the case file to the People's Court of Dien Bien Phu City, Dien Bien province for retrial in accordance with the provisions of law with the following judgment:

Based on the documents in the case file, the origin of the 72m2 ^land plot 2A, map sheet 289 IV-Dd, residential group 8, ward T, city P, Dien Bien province belongs to Mr. Quang Van P1, granted by the local government for housing according to land grant certificate No. 1487 dated September 25, 2003.

On December 6, 2003, Mr. Quàng Văn P1 made a paper transferring the ownership of the land lot to Mr. Quàng Văn P2 and his wife, with the signatures of Mr. Quàng Văn P1, Mr. Quàng Văn P2 and his wife, witnesses being the Party Cell Secretary, Block Leader and confirmation of the Ward People's Committee.

On December 24, 2003, Mr. Quàng Văn P1 again had a "Application for transfer of land use rights" still containing the content of transferring the land use rights to Mr. Quàng Văn P2 and his wife, with the signature of Mr. Quàng Văn P1 and confirmation of the street chief.

However, the above land area between Mr. Quàng Văn P1 and Ms. Quàng Thị N is in dispute. In the Civil Appeal Judgment No. 08/DSPT dated August 24, 2005, the People's Court of Dien Bien province ordered Ms. Quàng Thị N to return the land area to Mr. Quàng Văn P1 and in the "Minutes of the settlement of the enforcement of the judgment" dated March 22, 2006, Ms. Quàng Thị N returned the land to Mr. Quàng Văn P1.

Thus, there is a basis to determine that although in 2003 Mr. Quàng Văn P1 made a paper for Mr. Quàng Văn P2 and his wife, at this time Ms. Quàng Thị N was still the manager and user of the land; it was not until August 24, 2005 that Mr. Quàng Văn P1 was determined to be the person with the legal right to use the above land area (according to the effective decision of the Court) and it was not until March 22, 2006 that Mr. Quàng Văn P1 actually received the land. Therefore, the fact that Mr. Quàng Văn P1 made a gift paper for Mr. Quàng Văn P2 before that is not legally valid, moreover, Mr. Quàng Văn P2 and his wife have not completed the name change procedure and have not received the land.

After receiving the land, on March 25, 2006, Mr. Quàng Văn P1 authorized Mr. Quàng Văn P2 to apply for a construction permit, clear the land, build a house for Mr. Quàng Văn P1 to live in and take care of Mr. K (Mr. Quàng Văn P1's father). On June 12, 2006, Mr. Quàng Văn P1 was granted a land use right certificate.

On June 3, 2006, in Hanoi city, Mr. Quàng Văn P1 authorized Mr. Nguyễn Viết H to complete the procedures for Mr. Quàng Văn P1 to give the above land area to Mr. Quàng Văn P2 and his wife.

In the Land Use Rights Transfer Contract No. 82/HD-UBND (no date) at the People's Committee of Ward T, City P, Dien Bien Province, Mr. Quàng Văn P1 gave Mr. Quàng Văn P2 the above land area. The above contract has the signatures of Mr. Quàng Văn P1, Mr. Quàng Văn P2, and the authorized person is Mr. Nguyễn Viết H. However, the People's Committee of the ward confirmed it at 8:00 a.m. on October 6, 2006. Based on the above contract, Mr. Quàng Văn P2 was granted a land use rights certificate.

In fact, since February 17, 2003, Mr. Quang Van P1 was sick and had to be treated in Hanoi city (stroke, left hemiplegia, central nervous system paralysis...).

Thus, in 2006, Mr. Quàng Văn P1 signed many documents to decide on 72m2 of ^land for which he was granted a certificate on June 12, 2006. However, Mr. Quàng Văn P1 is in Hanoi city and is suffering from central nervous system paralysis, hemiplegia, and Mr. Quàng Văn P1 has never used the land.

It should be clarified and determined the will of Mr. Quàng Văn P1 regarding the disposition of this 72 m2 ^of land, considering and assessing whether Mr. Quàng Văn P1 intended to give it to Mr. Quàng Văn P2 or whether Mr. Quàng Văn P1 only assigned Mr. Quàng Văn P2 to build a house to live in. At the same time, clarify when and where Mr. Quàng Văn P1 signed the contract, the legal value of this contract, the reason why Mr. Quàng Văn P1 signed the contract and now requests to cancel the contract. If Mr. Quàng Văn P1 only assigned Mr. Quàng Văn P2 to build a house for him to live in and Mr. Quàng Văn P1 has a need to use the land, then the above contract must be canceled, recognizing that Mr. Quàng Văn P1 has the right to use the land, but Mr. Quàng Văn P1 must pay reasonable costs in the procedures for transferring the land title if Mr. Quàng Văn P2 requests.

In case Mr. Quàng Văn P1 has no need to use and shows his will to give it to Mr. Quàng Văn P2, then Mr. Quàng Văn P1's request must be rejected.

The Court of First Instance and the Court of Appeal have not yet clarified the above issues, but the Court of First Instance based on the documents signed by Mr. Quàng Văn P1 and the fact that Mr. Quàng Văn P2 was recognized as having the right to use the land to reject Mr. Quàng Văn P1's request, while the Court of Appeal held that Mr. Quàng Văn P1 was sick and did not realize that his actions when signing the documents and the donation procedures did not comply with the provisions of law, therefore, the cancellation of the transfer contract and the recognition of Mr. Quàng Văn P1 as having the right to use the land were not sufficient grounds.

In addition, the People's Committee is the competent authority to issue land use right certificates, but the Court of Appeal's recommendation that the Department of Natural Resources and Environment revoke the land use right certificate of Mr. Quang Van P2 is incorrect.

At the appeal hearing, the representative of the Supreme People's Procuracy stated that the appeal decision of the Chief Justice of the Supreme People's Court was necessary because in 2003, Mr. Quàng Văn P1 had signed a contract to transfer land use rights to Mr. Quàng Văn P2 and his wife and in 2006, he signed a power of attorney to donate land to Mr. Quàng Văn P2 and his wife. Although the documents stated the transfer of land use rights, they all showed that Mr. Quàng Văn P1 gave the land to Mr. Quàng Văn P2 and his wife. Therefore, it is necessary to clarify whether Mr. Quàng Văn P1's donation was conditional or not in order to resolve it in accordance with the provisions of law.

Court opinion

[1] When filing a lawsuit and during the process of resolving the case, Mr. Quàng Văn P1 stated that on September 25, 2003, the People's Committee of Dien Bien province granted him 72 square meters of ^land at plot 2A, map sheet 289 IV-Dd, residential group 8, ward T, city P, Dien Bien province according to Decision No. 1487.

[2] On December 6, 2003, Mr. Quàng Văn P1 made a paper transferring the ownership of the land lot to the couple Quàng Văn P2 and Ms. Phan Thi V, witnessed by the Party Cell Secretary, Block Leader and confirmed by the People's Committee of Ward T.

[3] On December 24, 2003, Mr. Quàng Văn P1 again submitted a "Land Use Rights Transfer Application" to transfer land use rights to the couple Quàng Văn P2 and Phan Thi V, with confirmation from the street chief.

[4] However, the above land area is being managed and used by Ms. Quàng Thị N (daughter of Mr. Quàng Văn P1). In 2005, Mr. Quàng Văn P1 filed a lawsuit requesting Ms. Quàng Thị N to return the above land area to him. In the Civil Appeal Judgment No. 08/DSPT dated August 24, 2005, the People's Court of Dien Bien province ordered Ms. Quàng Thị N to return the land to Mr. Quàng Văn P1.

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

[6] On September 15, 2006, Mr. Quàng Văn P1 submitted a request to confirm that he authorized Mr. Quàng Văn P2 and Ms. Phan Thi V to have full rights to "Own and use land".

[7] On October 3, 2006, Mr. Quàng Văn P1 signed a contract authorizing Mr. Nguyễn Viết H to carry out the procedures to donate the above land area to Mr. Quàng Văn P2, certified by State Notary Office No. 3, Hanoi city.

[8] On October 6, 2006, Mr. Quàng Văn P1 again made a contract to transfer land use rights to Mr. Quàng Văn P2 and Ms. Phan Thi V, the transfer value section stated "Father gives to son"; Dien Bien Phu City People's Committee confirmed No. 82/HD-UBND on the same day, so this contract legalized Mr. Quàng Văn P1's gift of land use rights to Mr. Quàng Văn P2 and Ms. Phan Thi V.

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

[10] Thus, if there is a basis to determine that the competent State agency in the locality granted land to Mr. Quàng Văn P1 since 2003 (because the Courts at all levels have not yet collected the land grant decision in 2003), then Mr. Quàng Văn P1 has the legal right to use the above land area since 2003, so Mr. Quàng Văn P1 has the right to dispose of his property.

[11] However, Mr. Quàng Văn P1 claimed that his gift to Mr. Quàng Văn P2 and his wife was conditional, that is, Mr. Quàng Văn P2 and his wife had to build a house for him to live in, take care of him and his parents, but Mr. Quàng Văn P2 and his wife did not fulfill their commitment. Although Mr. Quàng Văn P2 did not acknowledge that Mr. Quàng Văn P1's gift was conditional, the power of attorney dated March 25, 2006 stated that Mr. Quàng Văn P1 authorized Mr. Quàng Văn P2 to apply for a construction permit... responsible for building a house on lot 379B for Mr. Quàng Văn P1 to live in, and responsible for taking care of Mr. K and his wife (Mr. Quàng Văn P1's parents). In the Commitment dated October 12, 2006, Mr. Quàng Văn P2 wrote "... My father gave me a piece of land... I make this commitment to the local government that I will build a house for my father and will not transfer it to anyone."

[12] Although the land use right donation contract does not state any conditions, the above documents show that Mr. Quàng Văn P2 must build a house for Mr. Quàng Văn P1 to live in, take care of Mr. Quàng Văn P1 and Mr. Quàng Văn P1's parents.

[13] Therefore, it is necessary to verify whether Mr. Quàng Văn P2 fully complied with the above conditions or not? During the time Mr. Quàng Văn P1 was treated at the hospital, who took care of Mr. Quàng Văn P1? Currently, Mr. Quàng Văn P2 and his wife are residing in Hanoi, so what are the conditions for taking care of Mr. K and his wife (Mr. Quàng Văn P1's parents)? Based on determining the implementation of the conditions by Mr. Quàng Văn P2 and his wife, it is necessary to determine whether the donation contract between Mr. Quàng Văn P1 and Mr. Quàng Văn P2 and his wife has been completed or not to resolve the case according to the provisions of law.

[14] On the other hand, according to the provisions of Article 44 of the Land Law, the Department of Natural Resources and Environment does not have the authority to reclaim land, so the Court of Appeal's recommendation that the Department of Natural Resources and Environment revoke the Land Use Right Certificate of Mr. Quang Van P2 is illegal.

[15] The Supreme People's Court Civil Court's Board of Review finds it necessary to annul the civil appellate judgment and annul the civil judgment at first instance for retrial at first instance in accordance with the provisions of law.

[16] The appeal decision of the Chief Justice of the Supreme People's Court is well-founded.

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

Decision

1. Annul the Civil Appeal Judgment No. 14/2007/DSPT dated August 28, 2007 of the People's Court of Dien Bien province and annul the Civil First Instance Judgment No. 03/2007/DSST dated June 30, 2007 of the People's Court of Dien Bien Phu City, Dien Bien province on the case "Request to cancel the land use rights transfer contract" between the plaintiff Mr. Quàng Văn P1 and the defendants Mr. Quàng Văn P2 and Ms. Phan Thi V.
2. Transfer the case file to the People's Court of Dien Bien Phu City, Dien Bien Province for retrial according to the provisions of law.

Case law content

“[10] Thus, if there is a basis to determine that the competent State agency in the locality granted land to Mr. Quàng Văn P1 since 2003 (because the Courts at all levels have not yet collected the land grant decision in 2003), then Mr. Quàng Văn P1 has the legal right to use the above land area since 2003, so Mr. Quàng Văn P1 has the right to dispose of his property.

[11] However, Mr. Quàng Văn P1 claimed that his gift to Mr. Quàng Văn P2 and his wife was conditional, that is, Mr. Quàng Văn P2 and his wife had to build a house for him to live in, take care of him and his parents , but Mr. Quàng Văn P2 and his wife did not fulfill their commitment. Although Mr. Quàng Văn P2 did not acknowledge that Mr. Quàng Văn P1 gave the gift conditionally, the power of attorney dated March 25, 2006 showed that Mr. Quàng Văn P1 authorized Mr. Quàng Văn P2 to apply for a construction permit... responsible for building a house on lot 379B for Mr. Quàng Văn P1 to live in, and responsible for taking care of Mr. K and his wife ( Mr. Quàng Văn P1's parents ) . In the Commitment dated October 12, 2006, Mr. Quang Van P2 wrote "... My father gave me a piece of land ... I make this commitment to the local government that I will build a house for my father and will not transfer it to anyone."

[12] Although the land use right donation contract does not state any conditions, the above documents show that Mr. Quàng Văn P2 must build a house for Mr. Quàng Văn P1 to live in, take care of Mr. Quàng Văn P1 and Mr. Quàng Văn P1's parents .

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