Source of case law:
Final judgment No. 19/2019/DS-GDT dated August 20, 2019 of the Council of Judges of the Supreme People's Court on the case of "Dispute over land use rights" in Bac Lieu province between the plaintiff, Ms. Ly Kim S, and the defendant, Mr. Tran Van N; persons with related rights and obligations, including 16 people.
Location of case law:
Paragraph 1 of the “Court's Opinion” section.
Overview of case law:
- Case law:
The land was originally developed by an individual who later emigrated and settled abroad and was managed and used by another person in a stable and long-term manner. During the process of using the land, this person improved the land, built a stable house, registered and was granted a land use right certificate.
- Legal solutions:
In this case, it must be determined that the individual who reclaimed the land no longer has legal rights to use the land, so the request to reclaim land use rights is unfounded and cannot be accepted.
Legal provisions relating to precedents:
- Clause 2, Article 10, Clause 1, Clause 4, Article 50 of the 2003 Land Law (corresponding to Clause 5, Article 26, Clause 1, Clause 4, Article 100 of the 2013 Land Law);
- Clause 1, Article 164, Article 176, Clause 2, Article 177, Articles 192, 196, 201 of the 1995 Civil Code (corresponding to Clause 1, Article 155, Article 170, Clause 2, Article 171, Articles 185, 190, 195 of the 2005 Civil Code; Clause 1, Article 150, Article 221, Clause 2, Article 237, Articles 187, 182, 192 of the 2015 Civil Code).
Keywords of the case:
“Land use right claim”; “Land developed by individuals”; “Settling abroad”; “Others have managed and used the land”; “Stable, long-term land use”; “Issued land use right certificate”.
CASE CONTENT:
In the petition dated September 18, 2012 and during the process of resolving the case, the plaintiff, Ms. Ly Kim S, represented by Ms. Tran Thi Phuong L1 under authorization, stated:
In 1958, Ms. S's parents, Mr. Ly Ma C and Mrs. Tran Thi K, reclaimed about 50,450m2 of agricultural land, now belonging to plot 135 with an area of 47,250m2 , plot 138 with an area of 3,200m2 in Hamlet X, Commune N, District H, Bac Lieu Province. In 1971, Mr. K and his wife assigned their son, Mr. Ly Kim Q, to manage and use the above land area. In 1978, Mr. Q leased the above land area to Mr. Tran Van C1 (Mr. K's younger brother), but did not prepare any documents and Mr. C1 did not pay the land rent (there is a testimony that in 1971, Mr. K and his wife leased the above land area to Mr. C1). In 1997, Mr. C1 self-declared and was granted a Certificate of land use rights for an area of 47,250m2 , plot number 135. However, Mr. C1 also signed a "Certificate of land ownership" on May 30, 2004, confirming that Mr. C1 borrowed the above land from Mr. K's couple.
When Mrs. S intended to move the grave of Mr. K's couple to the above land, Mr. Tran Van N (the person currently using the land) did not agree. Therefore, the children of Mr. K's couple, Mrs. Ly Kim S, Mr. Ly Kim Q, Mr. Ly Kim S1, and Mrs. Ly Kim H, agreed to authorize Mrs. S to file a lawsuit requesting Mr. N to return the entire area of 50,450m2 of the above land. At the first instance trial, Mrs. L1 (authorized representative of Mrs. S) withdrew part of the lawsuit request, only requesting Mr. N to return the actual measured area of 30,674.7m2 at plot number 135 and requested to receive the compensation amount due to the State's recovery of the area of 3,184m2 of land at plot number 135.
The defendant, Mr. Tran Van N, stated:
The origin of the disputed land was used by Mr. Tran Van C1 (his father) before 1975 and was granted a Land Use Rights Certificate in 1997. After that, Mr. C1 completed the procedure to donate this land area to him; he was granted a Land Use Rights Certificate in 2009 and has directly managed and used this land since then. Regarding the Confirmation Certificate dated May 30, 2004 provided by Ms. S, he confirmed that the signature on the paper was not Mr. C1's signature, but he did not request an appraisal. During the land use process, the State reclaimed a part of the land to build a road. His family had stably used the above land area before 1975 and was granted a Land Use Rights Certificate, so the request for land claim of Mr. K's children and wife was not accepted.
Persons with related rights and obligations:
- Ms. Vo Thi B stated: Around 1970-1971, when she came to live with Ms. C1, Ms. C1 cultivated and used the disputed land. Ms. C1 said that this land was rented from Mr. K. When Ms. K's family left the country and settled in the US, Mr. K transferred the above land to Ms. C1. During the process of using it, Ms. C1 registered, declared and was granted a Land Use Rights Certificate in 1997; in 2009, Ms. C1 completed the procedure to donate it to Mr. N. She did not agree to return the disputed land to the children of Ms. K and Ms. C.
Mr. and Mrs. Tran Thi D, Tran Thi D, Tran Thi T and Tran Van Q1 presented: Mr. and Mrs. Tran Van C1 (died in 2009) and Ms. Dang Thi V (died in unknown year) had 4 children. After Mr. V died, Mr. C1 lived with Ms. Vo Thi B and had 7 children including Mr. and Mrs. Tran Van H1, Tran Thi Cam H2, Tran Van L, Tran Van N1, Tran Thi M, Tran Thi G and Tran Van N. The origin of the disputed land previously belonged to Mr. and Mrs. C and Mrs. K. Due to difficult circumstances, Mr. C1 borrowed the disputed land from Mr. and Mrs. K, without making any paperwork when borrowing the land. Later, Mr. K's family went abroad to live, Mr. C1 declared and registered himself and was granted a Land Use Rights Certificate. When Mr. and Mrs. K's children found out, Mr. C1 wrote a paper acknowledging that the land under Mr. C1's name was lent by Mr. and Mrs. K. They all agreed with Ms. S's request to sue.
- Mr. and Mrs. Tran Van H1, Tran Thi Cam H2, Tran Van L, Tran Van N1, Tran Thi M, Tran Thi G stated: They do not know who owns the disputed land, but since birth and growing up, Mr. C1 (their father) has cultivated this land. In 1997, Mr. C1 was granted a Land Use Rights Certificate, in 2009 Mr. C1 gave it to Mr. N and Mr. N was granted a Land Use Rights Certificate. They do not agree with Ms. S's request to file a lawsuit.
In the Civil Judgment at First Instance No. 05/2015/DS-ST dated July 15, 2015, the People's Court of Bac Lieu province decided:
Accept part of the lawsuit request of Ms. Ly Kim S against Mr. Tran Van N. Force Mr. Tran Van N to be responsible for returning to Ms. Ly Kim S, Mr. Ly Kim Q, Mr. Ly Kim S1 and Ms. Ly Kim H the value of the land area of 30,674.7m2 at plot 135, map sheet number 09 in hamlet X, commune N, district H, Bac Lieu province with a total amount of 788,389,547 VND.
Ms. Ly Kim S, Mr. Ly Kim Q, Mr. Ly Kim S1 and Ms. Ly Kim H are responsible for contacting the H district Basic Construction Investment Project Management Board to receive the compensation amount for the land area of 3,184 m2, which is 636,800,000 VND.
Recognize and assign Mr. Tran Van N the right to manage and use the area of 30,674.7m2 at plot 135, map sheet number 09 in hamlet X, commune N, district H, Bac Lieu province, the land areas have specific locations as follows:
Land part I: Area 757.7 m2 with the following measurements: East side borders Mr. Truong Thanh H's land 26.3m2 ; West side borders canal 14000 and Cai Chanh river 00m; South side borders canal 14000 with a measurement of 66m; North side borders Cai Chanh river 57.9m.
Land part II: Area 6,892m2 ( excluding the area of land clearance and road corridor V) with the following measurements: East side adjacent to Mr. Truong Thanh H's land 129.5m; West side adjacent to irrigation canal 180.1m; South side adjacent to Mrs. Truong Thi H's land 63.9m; North side adjacent to canal 14000 is 50.8m.
Land part III: Area 23,025m2 ( excluding the area of land clearance and road corridor V) with the following measurements: East side borders irrigation canal with measurement 217.1m; West side borders Mr. Truong Van T's land 232.7m; South side borders Mr. Truong Van N2's land 91.1m; North side borders canal 14000 and Mr. Truong Van T's land 162.3m.
The cadastral measurements of the above-mentioned land areas are attached to the Judgment and are an inseparable part of the Judgment. After the first instance trial, Mr. Tran Van N and Mr. Tran Van L filed an appeal.
In the Civil Appeal Judgment No. 210/2016/DS-PT dated September 8, 2016, the High People's Court in Ho Chi Minh City decided:
Amend the First Instance Judgment, recognizing the agreement between Ms. Tran Thi Phuong L1 (authorized representative of Ms. Ly Kim S, Mr. Ly Kim Q, Mr. Ly Kim S1, Ms. Ly Kim H) and Mr. Tran Van N as follows:
- Mr. Tran Van N has the right to manage and use the land area of 30,674.7m2 at plot 135, map sheet number 09 in hamlet X, commune N, district H, Bac Lieu province, the land areas are located as follows:
Land part I: Area 757.7m2 with the following measurements: East side borders Mr. Truong Thanh H's land 26.3m; West side borders canal 14000 and Cai Chanh river 00m; South side borders canal 14000 with a measurement of 66m; North side borders Cai Chanh river 57.9m.
Land part II: Area 6,892m2 ( excluding the area of land clearance and road corridor V) with the following measurements: East side adjacent to Mr. Truong Thanh H's land 129.5m; West side adjacent to irrigation canal 180.1m; South side adjacent to Mrs. Truong Thi H's land 63.9m; North side adjacent to canal 14000 is 50.8m.
Land part III: Area 23,025m2 ( excluding the area of land clearance and road corridor V) with the following measurements: East side borders irrigation canal with measurement 217.1m; West side borders Mr. Truong Van T's land 232.7m; South side borders Mr. Truong Van N2's land 91.1m; North side borders canal 14000 and Mr. Truong Van T's land 162.3m.
The cadastral measurements of the above-mentioned land areas are attached to the Judgment and are an inseparable part of the Judgment.
- Ms. Ly Kim S, Mr. Ly Kim Q, Mr. Ly Kim S1 and Ms. Ly Kim H, with Ms. Tran Thi Phuong L1 as authorized representative, are entitled to contact the H district Basic Construction Investment Project Management Board to receive the compensation amount for the area of 3,184m2, which is 636,800,000 VND.
Mr. Tran Van N is responsible for paying Ms. Ly Kim S, Mr. Ly Kim Q, Mr. Ly Kim S1, Ms. Ly Kim H, with Ms. Tran Thi Phuong L1 as the authorized representative, the amount of VND 72,246,970.
After the appeal trial, Mr. Tran Van N submitted a request for review under the cassation procedure for the above-mentioned Civil Appeal Judgment.
In the Decision on appeal for review No. 33/2019/KN-DS dated June 18, 2019, the Chief Justice of the Supreme People's Court appealed the Civil Appeal Judgment No. 210/2016/DS-PT dated September 8, 2016 of the High People's Court in Ho Chi Minh City; requested the Council of Judges of the Supreme People's Court to review the case in the direction of annulling the above Civil Appeal Judgment and annulling the Civil Judgment at first instance No. 05/2015/DS-ST dated July 15, 2015 of the People's Court of Bac Lieu province; and transferred the case file to the People's Court of Bac Lieu province for retrial according to the first instance procedure, in accordance with the provisions of law.
At the appeal hearing, the representative of the Supreme People's Procuracy agreed with the appeal decision of the Chief Justice of the Supreme People's Court.
JUDGMENT OF THE COURT:
- Land plot No. 135 in Hamlet X, Commune N, District H, Bac Lieu Province was originally reclaimed by Mr. K and his wife around 1958, but Mr. C1's family has been using this land stably since at least 1975 until now. During the process of use, Mr. C1 registered, declared and was granted a Land Use Rights Certificate in 1997, then Mr. C1 completed the procedure to donate it to Mr. N and Mr. N was granted a Land Use Rights Certificate in 2009. Mr. K and his wife did not register, declare, or use the above land area and did not have any of the documents according to Article 100 of the 2013 Land Law (formerly Article 50 of the 2003 Land Law). On the other hand, Mr. K's family has all left the country and settled in the US, so they do not meet the conditions for the State to recognize the right to use land, allocate land, and lease land according to the provisions of Articles 54, 55, 56, and 183 of the 2013 Land Law. Therefore, Mr. K and his wife do not have the legal right to use the disputed land area mentioned above. The court of first instance's acceptance of Ms. S's lawsuit request is incorrect.
- At the appeal hearing, the plaintiff and the defendant reached an agreement that Mr. N was entitled to use the area of 30,674.7m2 , plot of land No. 135, but had to pay the plaintiff half of the value of the right to use the area of 30,674.7m2 of land and half of the State compensation (after deducting 163,450,000 VND in support for households living on the land) when reclaiming 3,184m2 of land . From there, the Court of Appeal decided that Ms. L1 (authorized representative of Ms. S, Mr. S1, Ms. H, Mr. Q) had the right to contact the Management Board of Basic Construction Investment Projects of H district to receive 636,800,000 VND in compensation when reclaiming the land and 73,246,970 VND paid by Mr. N; Mr. N is entitled to use an area of 30,674.7m2 , land plot No. 135. However, according to the cadastral measurements of the land attached to the First Instance Judgment and the Appeal Judgment, in the total area of 30,674.7m2 of land that Mr. N is entitled to use according to the Judgment's decision, there are 813.7m2 of land plot No. 545 (in the name of Mr. Truong Van N2) and 1,233.6m2 of land plot No. 136 (managed by the State). The First Instance Court and the Appeal Court did not include the owners of these land plots in the proceedings as persons with related rights and obligations, but decided to assign the areas of the above land plots to Mr. N for use, which did not ensure their rights and seriously violated the proceedings prescribed in Clause 4, Article 68 of the 2015 Civil Procedure Code.
DECISION:
Pursuant to Point a, Clause 2, Article 337, Clause 3, Article 343 and Article 345 of the 2015 Civil Procedure Code.
- Accept the Decision of appeal for review No. 33/2019/KN-DS dated June 18, 2019 of the Chief Justice of the Supreme People's Court.
- Annul the Civil Appeal Judgment No. 210/2016/DS-PT dated September 8, 2016 of the High People's Court in Ho Chi Minh City and annul the Civil First Instance Judgment No. 05/2015/DS-ST dated July 15, 2015 of the People's Court of Bac Lieu province on the case of "Dispute over land use rights" between the plaintiff, Ms. Ly Kim S, and the defendant, Mr. Tran Van N, and other persons with related rights and obligations.
- Transfer the case file to the People's Court of Bac Lieu province for retrial according to first instance procedures, in accordance with the provisions of law.
CONTENT OF PRECEDENT
“[1] Plot No. 135 in Hamlet X, Commune N, District H, Bac Lieu Province was originally reclaimed by Mr. K and his wife around 1958, but Mr. C1's family has been using this land stably since at least 1975 until now. During the process of use, Mr. C1 registered, declared and was granted a Land Use Rights Certificate in 1997, then Mr. C1 completed the procedure to donate it to Mr. N and Mr. N was granted a Land Use Rights Certificate in 2009. Mr. K and his wife did not register, declare, or use the above land area and did not have any of the documents according to Article 100 of the 2013 Land Law (formerly Article 50 of the 2003 Land Law). On the other hand, Mr. K’s family has all left the country and settled in the US, so they are not eligible for the State to recognize the right to use land, allocate land, and lease land according to the provisions of Articles 54, 55, 56, and 183 of the 2013 Land Law. Therefore, Mr. K and his wife do not have the legal right to use the disputed land area mentioned above. The court of first instance’s acceptance of Ms. S’s lawsuit request is incorrect.”
Major
0911.688.554
Về chúng tôi
