Precedent No. 33/2020/AL

Regarding the case where an individual is allocated land by the state but does not use it but lets someone else manage and use it stably and long-term.

Approved by the Council of Judges of the Supreme People's Court on February 5, 2020 and promulgated under Decision No. 50/QD-CA dated February 25, 2020 of the Chief Justice of the Supreme People's Court.

Source of case law:

Final judgment No. 34/2018/DS-GDT dated June 26, 2018 of the Judicial Committee of the High People's Court in Hanoi on the case "Lawsuit to claim property, land and compensation when the State recovers land" in Hung Yen province between the plaintiffs Ms. Bui Thi P, Mr. Le Ngoc T1, Ms. Le Thi Thanh X and the defendant Mr. Le Ngoc T2; people with related rights and obligations including 06 people.

Location of case law:

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

Overview of case law:

- Case law:

An individual is granted land by the State but does not use it but lets someone else manage and use it stably and permanently since the land was allocated. During the process of using the land, this person has improved the land, built a stable house, registered and declared the land use rights without any comments from the person who was granted the land.

- Legal solutions:

In this case, the Court does not accept the request to reclaim land use rights.

Legal provisions relating to precedents:

- Articles 176, 192, 196 of the 1995 Civil Code (corresponding to Articles 170, 185, 190 of the 2005 Civil Code; Articles 221, 187, 182 of the 2015 Civil Code);

- Article 184 of the 2015 Civil Code.

Keywords of the case:

“Sue to claim land use rights”; “Let others manage and use land stably and permanently”; “Build stable housing”; “Register and declare land use rights”.

CASE CONTENT

In the petition and the proceedings, the plaintiffs, Ms. Bui Thi P, Mr. Le Ngoc T1 and Ms. Le Thi Thanh X, represented by Ms. Bui Thi P under authorization, stated:

Mr. Le Ngoc U and Mrs. Bui Thi T were from village D, commune D1, district P, Hung Yen province. They worked, lived and died in Lang Son province. Mr. U and Mrs. T had only one child, Mr. Le Ngoc H, the husband of Mrs. Bui Thi P. In 1973, Mr. U returned to his hometown and asked the People's Committee of commune D1 to grant him a plot of land with an area of ​​1,079m2 ⁱⁿ village D, commune D1, district P, Hung Yen province. In 1976, Mr. H returned to his hometown to build a three-room house with a flat roof, an attic and all the outbuildings including a kitchen, well, bathroom, toilet on the above plot of land for Mr. U and Mrs. T, who had retired at that time, to live in their hometown. Mr. U and Mrs. T lived in that house for a while and then moved into the village to the house and land left by Mr. T's parents. In 1977, Mr. Le Ngoc C1, Mr. U's younger brother, borrowed the house and land above for his son, Mr. Le Ngoc T2, to live in.

In 1985, Ms. P married Mr. H. At that time, Mr. U, Mr. T and Mr. H all lived at 53C, Ward D, City L, Lang Son Province.

On January 22, 1994, Mr. T died and on December 20, 1995, Mr. U died without leaving a will (both died in Lang Son). According to Mrs. P, before Mr. T passed away, she gave Mrs. P a land transfer paper to Mr. U in village D in 1973, but in 2008, a historic flood occurred in Lang Son, Mrs. P's house was flooded and all of her personal documents were damaged.

In 2008, Mr. Le Ngoc T2 went to Lang Son to meet Mr. H and asked him to write a power of attorney for Mr. T2 to receive compensation money from the State for land acquisition to open Road 38B. In June 2009, Mr. H died without leaving a will but told Mrs. P and her children to return to their hometown to reclaim the house and land lent to Mr. T2.

Ms. P and her children asked Mr. T2's family to return the entire house, land and 398,638,000 VND in compensation when the State reclaimed the land in 2008.

The defendant, Mr. Le Ngoc T2, stated:

The land plot that his family is managing and using was registered by his father, Mr. Le Ngoc C1, through Mr. Le Ngoc U (Mr. C1's brother) in 1974, but in reality, his father was the one who directly received the land. In 1975, his father allowed him and his wife to build a house on this plot of land. From the time he and his wife lived on the land until the death of Mr. U and his wife and Mr. H, Mr. U's family never claimed that the land was theirs, and Mr. U or Mr. H never built a house on this plot of land. The entire house and assets on the land today were built and created by him and his wife. In 1998, he declared himself the land user. In 2008, when the State reclaimed the land to expand Highway 38B, his family was compensated more than 300 million VND; Because the records did not show his family's name, the People's Committee of Commune D1 required him to have a commitment letter from the person whose name was on file 299, so he went to Lang Son to meet Mr. H and asked him to write a commitment letter. Mr. H wrote him a commitment letter dated April 10, 2008, confirming that the entire plot of land that Mr. U was granted by the commune in 1974 had been assigned to him for use; from then until now and from now on, the family has no opinion on that piece of land. He did not accept all of the lawsuit requests of Mrs. P and her children.

According to the People's Committee of Commune D1, the land plot that Mr. T2's family is managing and using is shown on map 299 established in 1981 with an area of ​​1073m2 ^at plot number 117, map sheet number 15; the 1986 inventory book on page 128 records the land user's name as Le Ngoc U1. The People's Committee of Commune D1 has verified and concluded that Mr. Le Ngoc U1 is from the same village D, but is not the owner of this land plot, but the owner's name in the inventory book is Le Ngoc U, which is correct.

According to the cadastral map of commune D1 completed in December 1998, on Map Sheet No. 31, the land plot that Mr. T2 is managing and using includes 4 plots: Plot No. 269 (T) with an area of ​​574.4m ² ; Plot No. 251 (pond) with an area of ​​261.2m ² ; Plot No. 286 (pond) with an area of ​​152.9m ² ; Plot No. 301 with an area of ​​149.1m ² is the land in the corridor of Road 38B. The total area of ​​the plots and corridors is 1,177.6m ² . According to the inventory book established in 1998, on pages 86 and 87, the above plots of land are all listed as the land user name of Le Ngoc T2.

In the Civil Judgment at First Instance No. 01/2015/DS-ST dated March 31, 2015, Phu Cu District People's Court decided:

1. Partially accept the lawsuit request of Ms. Le Thi Thanh X and Mr. Le Ngoc T. Ms. Bui Thi P has no rights related to the inheritance left by Ms. Le Ngoc U and Ms. Bui Thi T.
2. Assigned to Mr. Le Ngoc T2 and Ms. V for management and use according to actual measurement data on August 8, 2014 is 990m2 ^; of which: residential land is 816m2 ^; pond land is 174m2 ⁽ with attached diagram), Mr. Le Ngoc T2 and Ms. Doan Thi V have the obligation to register the right to use the assigned land at the competent state agency, according to the provisions of the land law.

The house, construction works, trees and crops on the land are owned by Mr. T2 and Ms. V.

3. Require Mr. Le Ngoc T2 and Ms. Doan Thi V to pay Ms. Le Thi Thanh X and Mr. Le Ngoc T1 the value of the inheritance that Ms. X and Mr. T1 inherited from Mr. Le Ngoc U and Ms. Bui Thi T in the amount of 191,864,200 VND (One hundred and ninety-one million eight hundred and sixty-four thousand two hundred VND).

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

On April 15, 2015, defendant Le Ngoc T2 appealed part of the judgment.

In the Civil Appeal Judgment No. 25/2017/DS-PT dated September 28, 2017 of the People's Court of Hung Yen province, it was decided:

1. Partially accept the lawsuit and appeal requests of Ms. Le Thi Thanh X and Mr. Le Ngoc T1, Ms. Bui Thi P (also known as Bui Thi Huong P).
2. Amend the first instance civil judgment No. 01/2015/DS-ST dated March 31, 2015 of the People's Court of Phu Cu district, Hung Yen province as follows:
3. Assign to Mr. Le Ngoc T2 and Ms. Doan Thi V an area of ​​621.2 m2 ^of land plot number 117, map sheet number 15, map 299 established in 1981, village D, commune D1, district P in the name of Mr. Le Ngoc U.
4. Assign to Ms. Le Thi Thanh X, Mr. Le Ngoc T1, Ms. Bui Thi P (also known as Bui Thi Huong P) an area of ​​369m2 ⁽ including 174.2m2 ^of pond land) at plot number 117, map sheet number 15, map 299 established in 1981, village D, commune D1, district P, in the name of Mr. Le Ngoc U, along with assets on the land including 01 level 4 house with corrugated iron roof, 01 shed, 01 livestock barn, and west wall on the assigned land area. Ms. Bui Thi P manages all assets of Ms. Le Thi Thanh X and Mr. Le Ngoc T1 (the assignment of land, assets, and dimensions has a specific diagram attached).
5. Ms. Bui Thi P (also known as Bui Thi Huong P) must pay back to Mr. Le Ngoc T2 and Ms. Doan Thi V the value of the construction on the assigned land in the amount of 47,068,000 VND (Forty-seven million sixty-eight thousand VND).
6. Require Mr. Le Ngoc T2 and Ms. Doan Thi V to pay Ms. Bui Thi P, Ms. Le Thi Thanh X and Mr. Le Ngoc T1 the value of the inheritance that Ms. P, Ms. X and Mr. T1 inherited from Ms. Le Ngoc U and Ms. Bui Thi T in the amount of 199,319,000 VND (One hundred and ninety-nine million three hundred and nineteen thousand VND).

In addition, the judgment also ruled on court costs and liability for late enforcement of the judgment.

On October 25, 2017, Mr. Le Ngoc T2 submitted a request for review under the cassation procedure for the above civil appellate judgment.

In Decision No. 07/QDKNGDT-VC1-DS dated March 28, 2017, the Chief Prosecutor of the High People's Procuracy in Hanoi appealed against the Civil Appeal Judgment No. 25/2017/DS-PT dated September 28, 2017 of the People's Court of Hung Yen province, requesting the Judicial Committee of the High People's Court in Hanoi to conduct a final review, annul the above Civil Appeal Judgment and the Civil Judgment at First Instance No. 01/2015/DS-ST dated March 31, 2015 of the People's Court of Phu Cu district, Hung Yen province; and hand over the case file to the People's Court of Phu Cu district, Hung Yen province for a retrial in accordance with the provisions of law.

At the cassation trial, the representative of the High People's Procuracy in Hanoi added a protest regarding court fees, requesting the Judicial Committee of the High People's Court in Hanoi to accept the protest of the Chief Prosecutor of the High People's Procuracy in Hanoi, annul the Civil Judgment at First Instance No. 01/2015/DS-ST dated March 31, 2015 of the People's Court of Phu Cu District, Hung Yen Province and the Civil Judgment at Appeal No. 25/2017/DS-PT dated September 28, 2017 of the People's Court of Hung Yen Province; hand over the case file to the People's Court of Phu Cu District, Hung Yen Province for retrial in accordance with the provisions of law.

JUDGMENT OF THE COURT:

[1] Based on the statements of the parties, all admitted that the land area is part of the 31 (actual land area is 990.2m2 ⁾ , map sheet No. 269 in village D, commune D1, district P, Hung Yen province was originally issued by the People's Committee of commune D1 to Mr. Le Ngoc U in 1973. This land plot is currently managed and used by Mr. Le Ngoc T2 (BL 181,184) and Mr. T2 has not been granted a land use right certificate.

[2] Mrs. P (the daughter-in-law of Mr. Le Ngoc U) said that after Mr. U was granted land, Mr. U and his wife, along with Mr. Le Ngoc H (Mr. U's son and her husband) brought construction materials from Lang Son to build a house and other structures on the land. Mr. U and his wife stayed for a short time and then moved to Lang Son to live with Mrs. P and her husband, and lent the house and land to Mr. C1's family (Mr. U's younger brother) for Mr. T2 (Mr. C1's son) to live in. Meanwhile, Mr. T2 and Mrs. S (Mr. C1's wife) did not admit to borrowing Mr. U's house and land, but claimed that because Mr. C1's family had many children, no one was married, and did not meet the conditions for land allocation for resettlement, they asked Mr. U to apply for land allocation for Mr. C1's family, Mr. C1 was the one who directly received the land and let Mr. T2 and his wife live there; at the same time, they presented confirmation from those who received the land, built houses and structures on Mr. T2's land to prove it. Based on the confirmation of witnesses, the minutes of appraisal of Mr. T2's house bricks with the bricks brought back from Lang Son by Ms. P for comparison, there is a basis to determine that the house and assets on the land were created by Mr. T2's family.

[3] Regarding the disputed land area, it is found that: Ms. P and Mr. T2 could not provide documents proving the legal right to use the disputed land area. However, based on the statements of the parties, the verification record at the People's Committee of Commune D1 (BL253), Mr. Ta Quang H (a cadastral officer of Cooperative D1 from 1960-1978) had grounds to determine that in 1973, Mr. Le Ngoc U (brother of Mr. Le Ngoc C1) worked in Lang Son and returned to his hometown to request land for resettlement, and was granted land by the People's Committee of Commune D1 to Mr. U. In the verification record with the cadastral officer of Commune D1, it is shown that Mr. U is the owner of the disputed land plot on the 1981 Plot Separation Map and the 1982 Inventory Book, Mr. Le Ngoc T2 is the owner of the 1998 Commune Cadastral Map and the 1998 Inventory Book (BL37). According to the verification record at the People's Committee of Commune D1, the origin of the land that Mr. T is managing and using is that it was granted by the People's Committee of Commune D1 in 1973 under the name of Mr. U. The locality cannot determine whether Mr. U applied for the land for himself or for Mr. C1. The commune does not have any documents related to the transfer of land use rights, but in fact, Mr. U's family and Mr. H (Mr. U's son) do not live on this land, but Mr. T2's family has managed and used it since 1975 until now and paid land tax (BL253). Mr. Ta Quang H, the person who allocated the land to Mr. U, also confirmed that Mr. U did not use it but Mr. T2 used it. After a while, Mr. U asked for another piece of land because the piece he had previously applied for had been used by Mr. T2, and the Cooperative granted Mr. U a second plot of land (currently Mr. B - Mr. T2's younger brother is using it - BL262).

[4] Although Mr. U was the one who was granted the land, after being granted the land, Mr. U did not use the land but let Mr. T2 use it from 1975 until now. During the process of using the land, because the land Mr. U was granted was puddle land, Mr. C1 and Mr. T2's family had to hire people to fill in the land to raise the foundation, build and repair the house many times. Mr. U and Mr. H both knew about the filling, repairing and building the house but there was no dispute. The People's Committee of Commune D1 and the witnesses who were local residents all confirmed that Mr. U and Mr. H did not return to live, did not build a house, occasionally returned to visit and stayed at Mr. C1's house in the village. After Mr. U and his wife died, Mr. H, Mr. U's only child, also made a commitment confirming that Mr. U could not return to live, so he handed over the right to use the above land plot to Mr. T2, the family had no opinion about that land plot. Thus, Mr. U is the person who was allocated land, but Mr. U did not use it but let Mr. T2 manage and use this land plot since Mr. U was allocated land (in 1974) until now. During the process of using the land, Mr. T2 has built a stable house, registered and paid land use tax for this land plot, so according to the provisions of the land law, Mr. T2 is eligible for consideration for a land use right certificate. The fact that Mr. U did not use the land but had his name on the Plot 299 Map and the 1982 inventory book is incorrect and is not the basis for determining that Mr. U is the legal user of this land plot. The Court of First Instance and the Court of Appeal only based on the fact that Mr. U was allocated land to determine that the disputed land plot belongs to Mr. U and his wife to accept the plaintiff's request to initiate a lawsuit and give a part of the effort to Mr. T2 is incorrect.

[5] On the other hand, this case is a lawsuit to claim property such as houses, land and compensation for support when the State recovers land, so it falls under the case of determining that the court fee has no threshold. The appellate court's determination that the court fee has a threshold is incorrect. Therefore, the appeal of the Chief Prosecutor of the High People's Procuracy in Hanoi is acceptable. However, considering that the court of first instance also made mistakes, but these mistakes can be corrected at the appellate court, it is not necessary to annul the first instance judgment to re-examine the case according to the first instance procedure to avoid prolonging the settlement of the case.

For the above reasons, based on Point a, Clause 1, Article 337, Clause 3, Article 343, Clause 1, Article 345 of the 2015 Civil Procedure Code;

DECISION:

1. Annul the entire Civil Appeal Judgment No. 25/2017/DS-PT dated September 28, 2017 of the People's Court of Hung Yen province on the case of "lawsuit to claim property, land and compensation when the State recovers land" between the plaintiff Mrs. Bui Thi P (also known as Bui Thi Huong P), Mr. Le Ngoc T1, Ms. Le Thi Thanh X and the defendant Mr. Le Ngoc T2; the people with related rights and obligations are Mrs. Vu Thi S, Mrs. Doan Thi V, Mr. Le Ngoc C2, Ms. Tran Thi N, Ms. Le Thi D1 and Ms. Le Thi D2.
2. Transfer the case file to the People's Court of Hung Yen province for retrial in accordance with the provisions of law.

CONTENT OF PRECEDENT

“[4] Although Mr. U was the one who was granted the land, after being granted the land, Mr. U did not use the land but let Mr. T2 use it from 1975 until now. During the process of using the land, because the land Mr. U was granted was puddle land, Mr. C1 and Mr. T2's family had to hire people to fill in the land to raise the foundation, build and repair the house many times. Mr. U and Mr. H both knew about the filling, repairing and building the house but there was no dispute. The People's Committee of Commune D1 and the witnesses who were local residents all confirmed that Mr. U and Mr. H did not return to live, did not build a house, occasionally returned to visit and stayed at Mr. C1's house in the village. After Mr. U and his wife died, Mr. H, Mr. U's only child, also made a commitment confirming that Mr. U could not return to live, so he handed over the right to use the above land plot to Mr. T2, the family had no opinion about that land plot. Thus, Mr. U is the person who was allocated the land, but he did not use it but let Mr. T2 manage and use this land plot since Mr. U was allocated the land (in 1974) until now. During the process of using the land, Mr. T2 built a stable house, registered and paid land use tax for this land plot, so according to the provisions of the land law, Mr. T2 is eligible to be considered for a land use right certificate. The fact that Mr. U did not use the land but his name was on the Plot 299 map and the 1982 inventory book is incorrect and is not the basis for determining that Mr. U is the legal user of this land plot. The Court of First Instance and the Court of Appeal only based on the fact that Mr. U was allocated the land to determine that the disputed land plot belongs to Mr. U and his wife to accept the plaintiff's request to initiate a lawsuit and give part of the effort to Mr. T2 is incorrect.

Major