Precedent No. 40/2021/AL

On the recognition of the actual conversion of land use rights

Approved by the Council of Judges of the Supreme People's Court on February 23, 2021 and promulgated under Decision No. 42 /QD-CA dated March 12, 2021 of the Chief Justice of the Supreme People's Court.

Source of case law:

Final judgment No. 37/2019/DS-GDT dated June 28, 2019 of the Judicial Committee of the High People's Court in Hanoi on the civil case "Property inheritance dispute" in Thanh Hoa province between the plaintiffs Mr. Le Van C1, Le Van C2, Ms. Le Thi M and the defendants Mr. Le Van D1, Ms. Nguyen Thi T2; the persons with related rights and obligations are the People's Committee of B town and Ms. Lai Thi H.

Location of case content :

Paragraphs 8 and 9 of the “Court's Opinion” section.

Overview of the case law:

- Case law:

The parties actually transferred land use rights without a written agreement; the parties have used the land stably and permanently, without disputes, have registered, declared and been granted land use right certificates for the converted land.

- Legal solutions:

In this case, the actual conversion of land use rights must be recognized; the parties have the right to use the converted land area.

Legal provisions related to precedents:

- Clause 2, Article 3 of the 1993 Land Law (corresponding to Clause 1, Article 106 of the 2003 Land Law; Clause 1, Article 167 of the 2013 Land Law);

- Clause 2, Article 170 of the 2005 Civil Code (corresponding to Clause 2, Article 221 of the 2015 Civil Code).

Keywords of the case law :

“Conversion of land use rights in practice”; “Stable and long-term land use”; “Issuance of land use right certificates”; “Recognition of conversion of land use rights in practice”.

CASE DETAILS :

According to the petition dated February 18, 2014 and during the process of resolving the case, the plaintiffs Mr. Le Van C1, Mr. Le Van C2 and Ms. Le Thi M stated:

When Mr. Le Van U married Ms. Nguyen Thi K, Ms. U already had 3 children (with his deceased wife), namely Mr. Le Quang T1, Mr. Le Van D1 and Mr. Le Quang D2. Mr. U and Ms. K had 3 children together, namely Mr. Le Van C1, Le Van C2 and Ms. Le Thi M.

In 1963, Mr. U and Mr. K left Q commune, H district to reclaim the new economic zone in L village (now in hamlet 5, T commune, B town, Thanh Hoa province) and brought along their four children, Mr. D2, Mr. C1, Mr. C2 and Mrs. M. When they left, they dismantled the kitchen and left the 5-room house in Q commune for Mr. T1 and Mr. D1 to own. The two reclaimed land and established plot number 986 in hamlet 5, T commune and built a 5-room house to live in. Mr. D2 died in the army in 1972 without a wife or children. Mr. C1 and Mr. C2 joined the army. In 1989, Mr. C1 was demobilized and in 1992, Mr. C2 was demobilized.

Mr. T1 married Ms. Le Thi C3, Mr. D1 married Ms. Nguyen Thi T2. During their time living together in Q commune, Ms. C3 and Ms. T2 had conflicts, so in 1983, Ms. T2 went to S town to live with Mr. U, Mr. K and Ms. M.

In 1997, Mr. U died without a will. On October 14, 2003, Mr. K realized that his family members had conflicts over land, so he called Mr. C1, Mr. C2, Mrs. M, Mr. T1 and Mr. D1 to a family meeting to divide the inheritance of plot 986 in village 5, commune T. The meeting was recorded by Mr. D1 himself with the purpose of dividing the land use rights. At the meeting, everyone recognized that the land was created and left by the two elders and the boundaries were determined, but they could not agree on how to divide it. Specifically, Mr. K, Mr. C1, Mr. C2 and Mrs. M did not agree to receive 10m of road frontage according to Mr. D1's opinion.

In 2006, Mr. K died without leaving a will. The siblings discussed dividing the inheritance of their parents' property, but could not reach an agreement, so Mr. C1, Mr. C2 and Mrs. M asked the village authorities to mediate on August 22, 2008. On October 10, 2010, Mr. D1 admitted that he had lived on the disputed land since 1984.

Mr. C1, Mr. C2 and Ms. M filed a lawsuit requesting the Court to: Cancel the land use right certificate No. C364176 in the name of Ms. T2's household in village 5, commune T; leave 116m2 of ^land plot No. 986 to build a church for the two elders, and divide the remaining land into inheritance for the grandparents. Regarding the constructions on the land and nearly 20m of road frontage that Mr. D1 sold when the two elders were still alive, the plaintiffs do not request to reclaim or divide the inheritance.

The defendants Mr. D1 and Ms. T2 stated:

The land plot that the plaintiffs requested to divide the inheritance is not the land left by their parents. This land, Mr. D1 and Mrs. T2 used 2,112m2 of ^land plot number 288, map sheet 299 in the cadastral map of commune T, which was the land that the couple was granted by the commune in 1982 to exchange for Mr. U and Mr. K for plot number 986 (plot number 40 according to the 1997 map). Since it is exchanged land, it is no longer the land of the two grandparents and currently the couple has been granted a land use right certificate.

Request the competent authority to reclaim land plot number 288, the land user is the two elders. This land plot that Mr. C1 transferred to Mr. Trinh Van T3 is illegal, because there was no discussion among family members, including Mr. D1. Land plot number 288, which the two elders were granted a land use right certificate for, was also in 1994, and is the land the two elders left behind for inheritance.

The conciliation records submitted by the plaintiff with the lawsuit are not objective and not in accordance with the law, because the family has been granted a land use right certificate since 1994, more than 20 years ago. Before the family was granted the land use right certificate, no one had any disputes.

In the Civil Judgment at First Instance No. 04/2016/DSST dated May 27, 2016, the People's Court of Bim Son Town decided:

Partially cancel Decision No. 71/QD/UBBS dated September 23, 1994 of the People's Committee of Town B on the long-term stable allocation of land and the issuance of land use right certificates to Mrs. Nguyen Thi T2's household. The People's Committee of Town B is obliged to revoke the Land Use Right Certificate No. C36476 in the name of Mrs. Nguyen Thi T2's household to carry out procedures to re-issue the land use right certificate in accordance with the provisions of law.

Divide Mr. Le Van C1, Mr. Le Van C2 and Ms. Le Thi M to receive the inheritance of Ms. Nguyen Thi K including: 538m2 of ^land in village 5, commune T, town B. Specifically, each person is divided the right to use 179.33m2 of ^land worth 137,708,000 VND.

Temporarily hand over the legacy of Mr. Le Van U, including 1/2 of land plot No. 986 with an area of ​​538m2, ^to Mr. D1 to continue managing and using until there is a decision from the competent state agency.

In addition, the Court of First Instance also has other decisions, court fees and the right to appeal.

On June 8, 2016, Mr. D1 and Ms. T2 appealed the entire first instance judgment.

In the Civil Appeal Judgment No. 85/2016/DSPT dated September 16, 2016, the People's Court of Thanh Hoa province decided:

Not accepting the appeal of Mr. Le Van D1 and Ms. Nguyen Thi T2.

Uphold the original first instance judgment No. 04/2016/DSST dated May 27, 2014 of the People's Court of Bim Son town.

On December 30, 2016, N Limited Liability Law Firm (the person protecting the rights of Mr. D1) and Mr. D1 and Ms. T2 submitted a request to review the appellate judgment according to the cassation procedure.

In the Appeal Decision No. 06/2019/KN-DS dated February 14, 2019, the Chief Justice of the High People's Court in Hanoi requested the Judicial Committee of the High People's Court in Hanoi to review the case and annul the above-mentioned Civil Appeal Judgment and annul the Civil Judgment at First Instance No. 04/2016/DSST dated May 27, 2016 of the People's Court of Bim Son Town, Thanh Hoa Province; and transfer the case file to the People's Court of Bim Son Town, Thanh Hoa Province for retrial in accordance with the provisions of law.

At the appeal hearing, the representative of the High People's Procuracy in Hanoi requested the Judicial Committee of the High People's Court in Hanoi to accept the appeal of the Chief Justice of the High People's Court in Hanoi.

JUDGMENT OF THE COURT:

[1] Mr. Le Van U and Ms. Nguyen Thi K have 3 common children, Mr. Le Van C1, Le Van C2 and Ms. Le Thi M. Ms. U also has 3 stepchildren (with his deceased wife), Mr. Le Quang T1, Mr. Le Van D1 and Mr. Le Quang D2 (who died in 1972 without a wife or children). In 1997, Mr. U died and in 2006, Mr. K died without leaving a will. On February 18, 2014, Mr. C1, Mr. C2 and Ms. M filed a lawsuit requesting the Court to cancel the Land Use Right Certificate No. C364176 dated September 23, 1994 in the name of Ms. T2's household in village 5, commune T, town B, Thanh Hoa province; to divide the inheritance of land plot No. 986, map sheet No. 1, cadastral map of commune T, town B, Thanh Hoa province, which Mr. D1 and Ms. T2 are managing and using.

[2] During the process of resolving the case, the parties agreed to declare that the origin of the disputed land was reclaimed by Mr. U and Mr. K when they went to reclaim land. Mr. D1 and Mrs. T2 declared that in 1982, the couple moved from district H to town B to live with Mr. U, Mr. K and Mrs. M on the above plot of land; in 1984, the People's Committee of commune T granted the couple a plot of land in the petroleum area (in Chom Vang) and the couple exchanged the land granted to Mr. U and Mr. K for plot No. 986 (according to the 1997 cadastral map, it was plot No. 40) and the couple was granted a land use right certificate, so the disputed land was no longer the legacy of Mr. U and Mr. K, but the private property of Mr. D1 and Mrs. T2. Ms. M and Mr. C1 agreed to declare that in 1984 (at that time, Mr. C1 and Mr. C2 were still serving in the army, Mr. C1's wife was teaching in another locality so she could not apply for land), at the request of Mr. U, Ms. M applied for land in Mr. D1's name for Mr. C1 and was granted a plot of land in Chom Vang by the People's Committee of Commune T, but because Mr. D1 and Ms. T2 refused to move to the newly granted land, to avoid family conflicts, Mr. C1 built a house on the newly granted land and then moved Mr. U, Mr. K and Ms. M to live there; therefore, although the newly granted land was under Mr. U's name, it belonged to Mr. C1.

[3] In Official Dispatch No. 910/UBND-TNMT dated July 28, 2014 of the People's Committee of Bim Son town, the content is as follows:

[4] According to map 299 approved in 1985, the disputed land belongs to plot number 986, area 1,616m2, ^land "T" does not record the land user; according to the survey map recognized in December 1997, the disputed land belongs to plot number 40, map sheet number 17, area 1,263m2 ^, the inventory book records residential land of 200m2 ^and garden land of 1,063m2 ^and the land user is Mr. D1; according to the cadastral map of T commune measured and approved in December 2011, the disputed land belongs to plot number 262, map sheet number 56, total area 1,571m2, the inventory book records residential ^land of 120m2 ^, land for growing other perennial crops of 1,451.4m2 ^and the land user is Mr. D1.

[5] Pursuant to Decision No. 201QD/DKTK dated July 14, 1989 of the General Department of Land Management promulgating regulations on granting land use right certificates and Decision No. 117/NN/UBTH dated January 21, 1993 of the People's Committee of Thanh Hoa province regulating the allocation of stable and long-term land to farming households; Submission No. 73/TT/UB dated August 20, 1994 of the People's Committee of T commune and the plan attached to the approval of the issuance of land use right certificates, the People's Committee of B town issued Decision No. 71/QD/UBBS dated September 23, 1994 on the allocation of stable and long-term land and the issuance of land use right certificates to 716 farming households belonging to cooperative X, commune T, including Ms. T2's household; Mrs. T2's household was granted a land use right certificate on September 23, 1994, with a total land area of ​​3,409m2 ^, including 200m2 ^of residential land, 786m2 ^of cultivated land plot number 986a, and the rest is agricultural land.

[6] According to Report No. 73/TT/UB dated August 20, 1994 of the People's Committee of Commune T, it shows that: The People's Committee of Commune T submitted to the Chairman of the People's Committee of Town B for approval on the allocation of land for long-term stability and the granting of land use right certificates to 716 farming households in the commune whose records were publicly disclosed and whose land use registration applications were submitted.

[7] In Decision No. 71/QD/UBBS dated September 23, 1994, the People's Committee of B town decided to allocate land for long-term stability to 716 farming households belonging to cooperative X, commune T. According to the above decision, Mrs. T2's household was allocated a total of 3,409m2 of ^land , including 200m2 ^of residential land, 876m2 ^of cultivated land all belonging to plot number 986a, the rest was rice land in different plots and Mrs. T2's household was granted a land use right certificate on the same day; Mr. U's household was allocated a total of 1,776m2 of ^land , including 200m2 ^of residential land, 556m2 ^of cultivated land all belonging to plot number 325 (according to the parties, it was plot number 288), the rest was rice land in different plots.

[8] Thus, the documents in the case file show that the land allocation to farmers in commune T was implemented in accordance with the State's policy and was publicly recorded. When the People's Committee of commune T and the People's Committee of town B implemented the land allocation policy and issued land use right certificates to 716 farmers in commune T, including Mr. U's household and Mrs. T2's household, Mr. U and Mrs. K were both still alive but did not have an application or declaration for the disputed land plot. The two of them only declared for land plot No. 325 (according to Mr. D1 and Mrs. T2, the land plot was exchanged for the two of them) and the two of them were granted land use right certificates for this land plot. Mrs. T2's household was granted a land use right certificate for plot No. 986a (which is the disputed plot 986). On the other hand, after Mrs. T2's household was granted a land use right certificate for the disputed land plot, no one complained; it was only in 2008, when Mr. U and Mr. K died, that a dispute arose between their children. Therefore, there is a basis to determine that Mr. U and Mr. K exchanged land with Mrs. T2 and Mr. D1.

[9] The court of first instance held that according to map 299 of 1985, Mr. K and Mr. U were the users of the disputed land, so the disputed land was the inheritance of Mr. U and Mr. K and dividing the inheritance of Mr. K's land was incorrect.

[10] After the first instance trial, Mr. D1 and Ms. T2 appealed the entire first instance judgment. The Court of Appeal determined that plot of land No. 325 in the name of Mr. U's household was the private property of Mr. C1 and his wife, while plot of land No. 986 in the name of Ms. T2's household was the inheritance left by Mr. U and Ms. K, so it did not accept the appeal of Mr. D1 and Ms. T2 and upheld the decisions of the Court of First Instance as a serious mistake that caused damage to the legitimate rights and interests of Mr. D1 and Ms. T2.

[11] Regarding the proceedings: When resolving the case, the Court of First Instance and the Court of Appeal did not include Mr. T1 and his two children, Mr. D1 and Ms. T2, in the proceedings as persons with related rights and obligations, which was an omission.

For the above reasons,

DECISION:

Pursuant to Point a, Clause 1, Article 337, Article 342, Clause 3, Article 343, Article 345 of the Civil Procedure Code.

Accept the appeal of the Chief Justice of the High People's Court in Hanoi.

1. Annul the Civil Appeal Judgment No. 85/2016/DSPT dated September 16, 2016 of the People's Court of Thanh Hoa province and annul the Civil First Instance Judgment No. 04/2016/DSST dated May 27, 2016 of the People's Court of Bim Son town, Thanh Hoa province regarding the case of "Property inheritance dispute" between the plaintiffs Mr. Le Van C1, Mr. Le Van C2 and Ms. Le Thi M and the defendants Mr. Le Van D1, Ms. Nguyen Thi T2 and other persons with related rights and obligations.
2. Transfer the case file to the People's Court of Bim Son town, Thanh Hoa province for retrial according to the provisions of law.

CONTENT OF THE PRECEDENT

“[8] Thus, the documents in the case file show that the allocation of land to farmers of commune T was carried out in accordance with State policy and was publicly recorded. When the People's Committee of Commune T and the People's Committee of Town B implemented the policy of land allocation and granting land use right certificates to 716 farming households of Commune T, including Mr. U's household and Mrs. T2's household, Mr. U and Mrs. K were both still alive but did not have an application or declaration for the disputed land plot. They only declared for land plot No. 325 (according to Mr. D1 , Mrs. T2 declared that the land plot was exchanged for them) and they were granted land use right certificates for this land plot. Mrs. T2's household was granted land use right certificates for plot No. 986a (which is the disputed plot 986). On the other hand, after Mrs. T2's household was granted a land use right certificate for the disputed land plot, no one complained ; it was only in 2008, when Mr. U and Mr. K died, that a dispute arose between their children. Therefore, there is a basis to determine that Mr. U and Mr. K exchanged land with Mrs. T2 and Mr. D1 .

[9] The court of first instance held that according to map 299 of 1985, Mr. K and Mr. U were the users of the disputed land, so the disputed land was the inheritance of Mr. U and Mr. K and dividing the inheritance of Mr. K's land was incorrect . "

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