Precedent No. 24/2018/AL

On inheritance converted into property under the ownership and legal use rights of individuals

Adopted by the Council of Judges of the Supreme People's Court on October 17, 2018 and promulgated under Decision No. 269/QD-CA dated November 6, 2018 of the Chief Justice of the Supreme People's Court.

Source of case law:

Final judgment No. 27/2015/DS-GDT dated October 16, 2015 of the Council of Judges of the Supreme People's Court on the civil case "Dispute over inheritance of land use rights" in Hanoi city between the plaintiffs Ms. Pham Thi H, Ms. Pham Thi H1, Ms. Pham Thi H2 and the defendant Mr. Pham Van H3; people with related rights and obligations including 12 people.

Location of case law:

Paragraph 4 of the “Court's Opinion” section.

Overview of case law:

- Case law:

The house and land are the common property of a married couple where one person dies first. The surviving spouse and the heirs of the deceased person have agreed to divide the house and land. The division agreement does not violate the rights of any heir.

The division of the house and land was actually carried out and adjusted in the land records. The dispute arose after the death of the remaining person.

- Legal solutions:

In this case, it must be determined that the house and land have been transferred to the legal ownership and usage rights of individuals. These individuals only have the right to sue to reclaim the divided house and land that is being illegally possessed and used by others, but do not have the right to request the division of the inherited property of the house and land.

Legal provisions relating to precedents:

Articles 219, 223, 226 of the 2005 Civil Code (corresponding to Articles 213, 218, 220 of the 2015 Civil Code).

Keywords of case law:

“Inheritance”; “Common property of husband and wife”; “Actual division of real estate”.

CASE CONTENT:

In the "Land Claim Petition" dated June 30, 2004 and the requests and statements during the proceedings, the plaintiffs, Ms. Pham Thi H, Pham Thi H1, and Pham Thi H2, stated:

Their parents were Mr. Pham Van H (died in 1978) and Mrs. Ngo Thi V (died on August 21, 1994) and had seven children: Mr. Pham Van H3, Mr. Pham Van D (died in 1998), Mr. Pham Van T, Mr. Pham Van Q (died in 2000) and their wives were Pham Thi H, Pham Thi H1, Pham Thi H2. During their lifetime, they had a house and kitchen on about 464 square meters of land in Q town, Ha Tay province (old, now part of Hanoi city).

In 1991, Mr. V divided the above land among his seven children: Four sons each got one part, and one part (3m wide, adjacent to the road, area 44.4m2) was divided among three daughters (the plaintiffs). Immediately after the division, Mr. D sold it for money and moved to Song Be province (old) to live; Mr. T and Mr. Q received the land to build houses. The part the women were divided was adjacent to the land that Mr. V divided for Mr. H3 (4m wide, adjacent to the road). Mr. H3 at that time already had a house and land elsewhere, so he had not used the divided land. At that time, the women were in the South, so Mr. H3 took care of both the land that Mrs. V divided for the women and the land that he divided, the total area of ​​the two parts was 110m2 (7m wide). Many years later, Mr. H3 still admitted that the land that the women were divided for him to take care of.

In 2002, when the women returned to the land to move their mother, Mr. H3 still agreed that when the women were qualified, they would receive the land to build a house. But in 2004, when the three sisters wanted to build a house on this land, Mr. H3 did not acknowledge that the land belonged to the three sisters and he divided the land among his children, Mr. Pham Van L and Ms. Pham Thi T, without returning the land to the women.

The Plaintiff requested the Court to force Mr. H3 to return the land that the women had been divided by their mother and siblings since 1991; at one point, the Court requested the 3 sisters to inherit according to the law in kind, which was 44.4 square meters of land. When the Hanoi People's Court re-accepted the case at first instance in 2010, the Plaintiffs requested the Court to resolve the division of the inheritance of the elders, which was 115 square meters (actual measurement 110 square meters) currently managed by Mr. H3.

The defendant is Mr. Pham Van H3 and the testimony of the authorized representative, Ms. Pham Thi T, stated:

Initially, Mr. H3 testified that his parents had real estate assets as stated by the plaintiffs, and in 1972, he started his own family and was given a plot of land by his parents on 162 square meters of land belonging to his ancestors. Later, the defendant gave a different statement, stating that this 162 square meters of land originated from Mr. H3 and his wife, Ms. Nguyen Thi N, who reclaimed the land themselves, converted the garbage pit and the water spinach field into a house foundation and have been using it until now, and is not the land of Mr. V and Mr. H.

In 1983, Mr. H3's family moved to another place, but still managed all the land and houses of his ancestors and the old land and houses of his family because at that time Mr. V and his siblings went to the South to build a new economy. In 1987, he declared and was granted a certificate of land use rights for plot No. 210 with an area of ​​162 square meters. In 1988, Mr. V returned to his hometown and divided the land but only divided it among his four sons and not among his three daughters as the plaintiffs stated. The location and area divided among Mr. D, Mr. T and Mr. Q and the land use receipt were also agreed with the plaintiff. When Mr. V divided the land, he agreed to cut 52 square meters out of his 162 square meters of land for Mr. Q, so he only had 110 square meters left. In 2004, he wrote a paper for his two children, Mr. L 65m2, Ms. T 45m2 and requested to split it into 2 plots for his children, but before the certificate was issued, Mrs. H, Mrs. H1 and Mrs. H2 disputed. Mr. H3 said that Mr. V did not divide the land in 1991 for Mrs. H, Mrs. H1 and Mrs. H2 as the plaintiff stated. The plaintiffs sued because the statute of limitations for inheritance had expired, the 110m2 of land belonged to him and did not agree with the plaintiff's request to sue.

The person with related rights and obligations presents:

Ms. Pham Thi T and Mr. Pham Van L have the same opinion as Mr. H3. Ms. T5 confirmed that in 2003, she built a house on the land that the plaintiff reclaimed.

Mr. Pham Van T stated: The origin of the land and house is as stated by the plaintiffs. Confirmed that in 1991, Mr. V held a family meeting and agreed to divide the land (orally) among his children, in which the 3 daughters were given a share and this share was managed by Mr. H3 along with the share that Mr. H3 was given. He confirmed that he had received the divided land, and then also transferred a part to another person. He requested the Court to resolve and force Mr. H3 to return the land to his three sisters.

Ms. Nguyen Thi T and her children with Mr. Pham Van D; Ms. Phung Thi H4 and her children with Mr. Pham Van Q, confirmed that Mr. V divided the land among his children, but Ms. T and Ms. H4, as daughters-in-law, were not allowed to participate, so they did not know clearly about this division. Ms. T confirmed that the land that Mr. D was divided was then sold to get money to go to the South. Ms. H4 confirmed that Mr. Q's part has been used by her family as a house until now. Because Mr. D and Mr. Q have been divided the land, Ms. T, Ms. H4 and their children have no request in this case.

After the Hanoi People's Court re-accepted the case in 2010, Mr. T and the heirs of Mr. D and Mr. Q all stated that they had no claim to the 110 square meters of land that the plaintiff requested to divide the inheritance, and all agreed that the three plaintiffs and Mr. H3 would enjoy the inheritance of Mr. T, Mr. D, and Mr. Q in this 110 square meter disputed property.

The case has gone through the following first instance and appeal trials:

- First instance civil judgment No. 07/2005/DSST dated July 7, 2005 of the People's Court of Quoc Oai district, Ha Tay province (old);

- Civil Appeal Judgment No. 126/2005/DSPT dated November 30, 2005 of the People's Court of Ha Tay Province (old);

Decision of the Supreme People's Court No. 106/2007/DS-GDT dated April 23, 2007 of the Civil Court (old) accepted the Protest No. 23/2007/KN-DS dated March 2, 2007 of the Chief Justice of the Supreme People's Court, annulled the First Instance Judgment and the Appeal Judgment, and assigned the People's Court of Quoc Oai District to re-examine the case at first instance.

- First instance civil judgment No. 01/2009/DSST dated January 7, 2009 of the People's Court of Quoc Oai district;

- The civil appeal judgment No. 87/2009/DSPT dated April 2, 2009 of the Hanoi People's Court annulled the first instance judgment for retrial. The Hanoi People's Court issued a Decision to transfer the case file to the Hanoi People's Court for first instance trial.

- Hanoi People's Court issued Decision No. 41/2010/QDST-DS dated July 20, 2010 suspending the settlement of the case;

- In Decision No. 183/2010/QD-PT dated November 19, 2010, the Court of Appeal of the Supreme People's Court in Hanoi (old) annulled the above first instance decision and transferred the case file to the Hanoi City People's Court for re-trial;

- First instance civil judgment No. 24/2013/DSST dated May 30 and 31, 2013 of the People's Court of Hanoi City decided:

1. Accept the request to file a lawsuit to divide the inheritance of Ms. Pham Thi H, Pham Thi H1, Pham Thi H2.
2. Determining the right to use land plot 252 map sheet number 2 with an area of ​​110m2 in town Q - Hanoi is the property of Ms. Ngo Thi V, Mr. Pham Van H with a value of 1,321,200,000 VND.

Divide the common property value of Mr. V and Mr. H, each person gets 1/2 of the property value, which is 660,600,000 VND.

Mr. H's property is the right to use 55 square meters of land worth 660,600,000 VND, the inheritance division period has expired.

Mr. V's property is the right to use 55 square meters of land worth 660,600,000 VND.

Divide for Mr. H3, Mrs. H, Mrs. H2, Mrs. H1 each period is entitled to 120,120,000 VND.

Divide for Mr. H3 to own the property worth 240,240,000 VND;

Divide for Ms. H, Ms. H2, Ms. H1 each person will receive property worth 120,120,000 VND, total 360,360,000 VND.

Divide for Ms. H, Ms. H1, Ms. H2 to use a level 4 house located on plot number 252, map sheet number 2, town Q, Hanoi, with an area of ​​44.4m2, worth 532,800,000 VND, with attached diagram.

Mr. Pham Van H3 is entitled to use 10.7m2 of land, Mr. H3, Ms. T, Mr. H continue to manage the area of ​​55m2 of land under the use of Mr. H due to the expiration of the statute of limitations on land plot No. 252, map sheet No. 02, Q town (with attached diagram) until there is another decision by the competent state agencies. Mr. H3, Ms. T, Mr. H are entitled to own the construction value of a 2-storey house, 1 attic worth 300,000,000 VND located on 65.7m2 of land on land plot No. 252, map sheet No. 02, Q town, Hanoi (with attached diagram). Mr. H3 receives 172,440,000 VND, Ms. T, Mr. H are entitled to receive 20,000,000 VND for repairs and renovations paid by Ms. H, Ms. H1 and Ms. H2.

Ms. H, Ms. H1 and Ms. H2 are responsible for paying Mr. H3 the amount of VND 172,440,000 and VND 20,000,000 for repairs and renovations for Ms. T and Mr. H.

Cancel the land use right certificate issued by the People's Committee of Quoc Oai district on September 10, 1987 for land plot number 210, map sheet number 2 with an area of ​​162m2 in the name of Mr. Pham Van H3.

Acknowledging the voluntary refusal of Mr. Pham Van T, Mrs. Nguyen Thi T and children: Pham Thi Thu T2, Pham Thi Thu T3, Pham Thi Thanh T4; Mrs. Phung Thi H4, children: Pham Thi H5, Pham Duc H, Pham Duc M all refused to receive the inheritance, did not claim rights to the area of ​​110m2 of land at plot number 252, map sheet number 2, town Q - Hanoi of Mr. V and Mr. H.

Acknowledging the voluntary participation of Mr. Pham Van H3, Mrs. Pham Thi H, Mrs. Pham Thi H2, Mrs. Pham Thi H1, Mr. Pham Van T, Mrs. Nguyen Thi T and their children Pham Thi Thu T2, Pham Thi Thu T3, Pham Thi Thanh T4, Mrs. Phung Thi H4, and their children Pham Thi H5, Pham Duc H, Pham Duc M:

+ Do not request the Court to settle the property on the land of Mr. V and Mr. H, which is 4 thatched houses with mud walls;

+ Do not request the Court to resolve funeral expenses;

+ No claim for rights to land plot number 253 named Pham Van Q, land plot number 261 named Pham Van T (area 189m2, including plot 261b), plot 260 area 94m2 named Nguyen Thi P.

+ Do not request the Court to resolve the matter of Mr. T and Mr. D transferring land to another person;

+ Do not request the Court to resolve the amount of VND 8,733,000.

The judgment also includes decisions on court fees, appeal rights, and late enforcement interest.

On June 14, 2013, Ms. T, Mr. H and Mr. L appealed.

In the Civil Appeal Judgment No. 53/2014/DSPT dated April 4, 2014, the Court of Appeal of the Supreme People's Court in Hanoi decided: Uphold the original judgment.

On August 19, 2014, Mr. Pham Van H3 submitted a request for a review.

In Protest No. 152/2015/KN-DS dated May 28, 2015, the Chief Justice of the Supreme People's Court protested the Civil Appeal Judgment No. 53/2014/DSPT dated April 4, 2014 of the Court of Appeal of the Supreme People's Court in Hanoi, requesting the Council of Judges of the Supreme People's Court to review the case in the direction of annulling the Civil Appeal Judgment No. 53/2014/DSPT dated April 4, 2014 of the Court of Appeal of the Supreme People's Court in Hanoi and the Civil Judgment at First Instance No. 24/2013/DSST dated May 30 and 31, 2013 of the People's Court of Hanoi; and transfer the case file to the People's Court of Hanoi for retrial.

At the appeal hearing, the representative of the Supreme People's Procuracy agreed with the appeal of the Chief Justice of the Supreme People's Court.

JUDGMENT OF THE COURT:

[1] Mr. Pham Van H (died in 1978) and his wife, Mrs. Ngo Thi V, had 7 children together: Mr. Pham Van H3, Mr. Pham Van D (died in 1998), Mr. Pham Van T, Mr. Pham Van Q (died in 2000), Mrs. Pham Thi H, Pham Thi H1, Pham Thi H2. During their lifetime, they built a thatched house on about 464 square meters of land in H Street, Q Town, Ha Tay Province (old, now Hanoi City). The land was originally divided during the land reform.

[2] After Mr. H died, Mr. H3 and his wife, Mrs. N, stayed and looked after the house and land, while Mr. V and his other children went to build a new economy in the South. In 1983, Mr. H3 and his wife moved to another house and land but still looked after and managed the house and land. The People's Committee of Q district confirmed that the land records kept at the People's Committee showed that the land of the grandparents was divided into two plots, one plot numbered 210 with an area of ​​162m2 in Mr. H3's name and plot 213 with an area of ​​300m2 in Mr. T's name. After that, Mr. V returned to this house and land and lived here until his death in 1994. After returning, he held a meeting with his children and divided the entire plot of land into four separate parts for the children. No one had any objections and everyone agreed to carry out this division. Thus, the fact that Mr. T and Mr. H3 agreed with Mr. V to divide 464 square meters of land showed that Mr. T and Mr. H3 were only the ones whose names were on the land records and documents, the land and house still belonged to Mr. V, and Mr. H had not divided it. Mr. H3 also could not provide evidence to prove that 162 square meters was his private property.

[3] The portion divided for Mr. D (94m2), Mr. Q (78m2), Mr. T (189m2), all of them received the land for use and then registered it as the land user, or transferred it to someone else and registered the adjustment in the land documents, so far no one has any disputes. Regarding the remaining 110m2 of land (the part with 7m of road frontage) managed by Mr. H3, it was not until 2004 that he divided the land among his children that Mrs. H, Mrs. H1, and Mrs. H2 had a dispute to reclaim 44.4m2. In fact, at the time Mr. V divided the land, the children were all adults, some had their own families and needed residential land, but Mr. H3 already had a house and land; Mrs. H, Mrs. H1, and Mrs. H2 were living in Binh Phuoc, so these four people did not have the need to build a house. Mr. T acknowledged that Mr. V divided the land, all the children agreed and Mr. T determined that the 110m2 land managed by Mr. H3 was divided by Mr. V to Mr. H3 and Mrs. H, Mrs. H1 and Mrs. H2. Mr. T requested the Court to resolve so that Mrs. H, Mrs. H1 and Mrs. H2 could receive their property back. The wives of Mr. D and Mr. Q, Mrs. T and Mrs. H4, and the children of Mr. D and Mr. Q, although not knowing the specifics of the division, all agreed that Mr. V had already divided the land to his children, so they had no request and the 110m2 land was for Mr. H3, Mrs. H and Mrs. H2 to enjoy. Therefore, there is sufficient basis to determine that Mr. V divided the land to Mrs. H, Mrs. H1 and Mrs. H2 and that Mr. H3 managed this land.

[4] With the above evidence, there is sufficient basis to determine that the house and land of Mr. V and Mr. H were divided by Mr. V and Mr. H's heirs in 1991 and there is sufficient basis to determine that the land is 110m2, of which Ms. H, Ms. H1 and Ms. H2's part is 44.4m2. The division was carried out in practice and was adjusted in the land records; the division agreement did not violate the rights of any heirs, no one disputed it, so there is a basis to determine that the house and land are no longer the inheritance of Mr. V and Mr. H but have been converted into the legal land use rights of individuals. Therefore, Ms. H, Ms. H1 and Ms. H2 only have the right to sue to reclaim the 44.4m2 of land under their legal use rights because it was divided in 1991; The property is the inheritance of the parents and is no longer there, so there is no basis to accept the request to divide the inheritance of Mr. H and Mr. V.

[5] The original petition and the statements before the Court of First Instance re-accepted the case in 2010, the plaintiffs only demanded the return of this 44.4 square meters of land. However, after the case was re-accepted at first instance, the plaintiffs changed their statements, requesting to divide the inheritance of the 110 square meters of land, which was the property left by their parents and is being managed by Mr. H3, which is unfounded. The Court of First Instance did not clarify the parties' statements about this change in the petition, and decided to accept the request to divide the inheritance of the 110 square meters of land; the Court of Appeal upheld the decision of the first instance judgment, both of which are unfounded.

For the above reasons, pursuant to Clause 3, Article 291; Clause 3, Article 297 and Clause 2, Article 299 of the Civil Procedure Code (amended and supplemented in 2011);

DECISION:

Annul the Civil Appeal Judgment No. 53/2014/DSPT dated April 4, 2014 of the Court of Appeal of the Supreme People's Court in Hanoi and the Civil First Instance Judgment No. 24/2013/DS-ST dated May 31, 2013 of the People's Court of Hanoi on the case of "Dispute over inheritance of land use rights" between the plaintiffs Ms. Pham Thi H, Ms. Pham Thi H2, Ms. Pham Thi H1 and the defendant Mr. Pham Van H3.

Transfer the case file to the Hanoi People's Court for retrial in accordance with the provisions of law.

CONTENT OF PRECEDENT

“[4]…the house and land of Mr. V and Mr. H were divided by Mr. V and Mr. H's heirs in 1991 and there is sufficient basis to determine the 110m2 land area, of which Mrs. H, Mrs. H1 and Mrs. H2's part is 44.4m2. The division was carried out in practice and was adjusted in the land records; the division agreement did not violate the rights of any heirs, no one disputed it, so there is a basis to determine that the house and land are no longer the inheritance of Mr. V and Mr. H but have been converted into the legal land use rights of individuals. Therefore, Ms. H, Mrs. H1 and Mrs. H2 only have the right to sue to reclaim the 44.4m2 of land under their legal use rights because it was divided in 1991; the property is the inheritance of their parents and is no longer there, so there is no basis to accept the request to divide the inheritance of Mr. H and Mr. V.”