Precedent No. 40/2021/AL on the recognition of de facto land use right exchange

1. What is a precedent?

Precedents are arguments and rulings in legally effective judgments and decisions of the Courts regarding specific cases selected by the Judicial Council of the Supreme People’s Court and published by the Chief Justice of the Supreme People’s Court as precedents for Courts to study and apply in adjudication. (Article 1 of Resolution 04/2019/NQ-HĐTP)

Selected precedents must meet the following criteria:

– Possess value in clarifying legal provisions that have different interpretations, analyzing and explaining legal issues and events, and pointing out principles, handling guidelines, and legal norms to be applied in a specific case or demonstrating fairness toward issues not yet specifically regulated by law;

– Be exemplary;

– Possess value in guiding the uniform application of law in adjudication.

2. Precedent No. 40/2021/AL on the recognition of de facto land use right exchange

2.1. Source of the precedent

Cassation Decision No. 37/2019/DS-GĐT dated June 28, 2019, of the Judges’ Committee of the High People’s Court in Hanoi regarding the civil case “Dispute over inheritance of assets” in Thanh Hoa province between the plaintiffs Mr. Lê Văn C1, Mr. Lê Văn C2, and Mrs. Lê Thị M and the defendants Mr. Lê Văn D1 and Mrs. Nguyễn Thị T2; the persons with related rights and obligations are the People’s Committee of B Town and Mrs. Lại Thị H.

Location of the precedent content:

Paragraphs 8 and 9 of the “Court’s Analysis” section.

2.2. Overview of the precedent content

– Precedent situation:

The parties carried out a de facto exchange of land use rights without a written agreement; the parties have used the land stably and long-term without dispute, have registered and declared, and have been granted land use right certificates for the exchanged land portion.

– Legal solution:

In this case, the de facto exchange of land use rights must be recognized; the parties have land use rights for the exchanged land area.

Legal provisions related to the precedent:

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

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

Keywords of the precedent:

“De facto exchange of land use rights”; “Stable and long-term land use”; “Granting land use right certificates”; “Recognition of de facto land use right exchange”.

CASE CONTENT:

According to the lawsuit filed on February 18, 2014, and during the case resolution process, the plaintiffs Mr. Lê Văn C1, Mr. Lê Văn C2, and Mrs. Lê Thị M stated:

When Mr. Lê Văn U married Mrs. Nguyễn Thị K, Mr. U already had 03 children (with his deceased wife): Mr. Lê Quang T1, Mr. Lê Văn D1, and Mr. Lê Quang D2. Mr. U and Mrs. K had 03 children together: Mr. Lê Văn C1, Mr. Lê Văn C2, and Mrs. Lê Thị M.

In 1963, Mr. U and Mrs. K left Q Commune, H District to reclaim new economic land in L Village (now part of Village 5, T Commune, B Town, Thanh Hoa Province), taking 04 children: Mr. D2, Mr. C1, Mr. C2, and Mrs. M. When leaving, the two elders dismantled the kitchen building to take with them and left the 05-compartment house in Q Commune for Mr. T1 and Mr. D1 to own. The two elders reclaimed and established land parcel No. 986 in Village 5, T Commune and built a 05-compartment house to live in. Mr. D2 joined the army and died as a martyr in 1972, unmarried and without 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 Mrs. Lê Thị C3, and Mr. D1 married Mrs. Nguyễn Thị T2. During the time living in Q Commune, Mrs. C3 and Mrs. T2 had conflicts, so in 1983, Mrs. T2 went to S Town to request to live with Mr. U, Mrs. K, and Mrs. M.

In 1997, Mr. U died without a will. On October 14, 2003, Mrs. K noticed conflicts among the brothers regarding the land, so she called Mr. C1, Mr. C2, Mrs. M, Mr. T1, and Mr. D1 for a family meeting with the purpose of dividing the inheritance of land parcel No. 986 in Village 5, T Commune. The meeting was recorded by Mr. D1 himself with the purpose of dividing land use rights. At the meeting, everyone recognized the land as established and left by the two elders and boundaries were determined, but they could not agree on the division method; specifically, Mrs. K, Mr. C1, Mr. C2, and Mrs. M did not agree to receive 10m of road frontage as proposed by Mr. D1.

In 2006, Mrs. K died without leaving a will. The siblings discussed dividing the inheritance left by their parents but could not agree, so Mr. C1, Mr. C2, and Mrs. M requested the village authorities to mediate on August 22, 2008. On October 10, 2010, Mr. D1 admitted to living on the disputed land area from 1984 to the present.

Mr. C1, Mr. C2, and Mrs. M filed a lawsuit requesting the Court to: Cancel Land Use Right Certificate No. C364176 in the name of Mrs. T2’s household in Village 5, T Commune; leave 116m² of land parcel No. 986 as a memorial house for the two elders, and divide the remainder among the siblings as inheritance. Regarding the structures on the land and nearly 20m of road frontage that Mr. D1 sold while the two elders were alive, the plaintiffs do not demand their return and do not request their division as inheritance.

The defendants, Mr. D1 and Mrs. T2, stated:

The land parcel the plaintiffs are requesting to divide as inheritance is not land left by the parents. For this land, Mr. D1 and Mrs. T2 used 2,112m² of land parcel No. 288, map sheet 299 in the cadastral map of T Commune, which was land granted to them by the commune in 1982, to exchange with Mr. U and Mrs. K for parcel No. 986 (which is parcel No. 40 according to the 1997 map). Since it was exchanged land, it no longer belongs to the two elders, and currently, the couple has been granted a land use right certificate.

They requested the competent authorities to recover land parcel No. 288, whose users were the two elders. Mr. C1 illegally transferred this parcel No. 288 to Mr. Trịnh Văn T3 without discussion with family members, including Mr. D1. Parcel No. 288, for which the two elders were also granted a land use right certificate in 1994, is the actual land left by the two elders for inheritance division.

The mediation minutes submitted by the plaintiffs are not objective and not in accordance with the law because their family has been granted a land use right certificate since 1994, over 20 years ago. Before their family was granted the certificate, no one had any disputes.

In First-instance Civil Judgment No. 04/2016/DSST dated May 27, 2016, the People’s Court of Bỉm Sơn Town decided:

Cancel a part of Decision No. 71/QD/UBBS dated September 23, 1994, of the People’s Committee of B Town regarding the allocation of stable and long-term land and the granting of a land use right certificate to Mrs. Nguyễn Thị T2’s household. The People’s Committee of B Town is obliged to recover Land Use Right Certificate No. C36476 in the name of Mrs. Nguyễn Thị T2’s household to proceed with re-issuing the land use right certificate in accordance with the law.

Divide to Mr. Lê Văn C1, Mr. Lê Văn C2, and Mrs. Lê Thị M the inheritance estate of Mrs. Nguyễn Thị K consisting of: 538m² of land in Village 5, T Commune, B Town. Specifically, each person is divided the land use right of 179.33m² valued at 137,708,000 VND.

Temporarily assign the estate of Mr. Lê Văn U, comprising 1/2 of land parcel No. 986 with an area of 538m², to Mr. D1 for continued management and use until there is a decision from a competent state agency.

In addition, the first-instance Court also made other decisions regarding court fees and the right to appeal.

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

In Appellate Civil Judgment No. 85/2016/DSPT dated September 16, 2016, the People’s Court of Thanh Hoa Province decided:

Do not accept the appeal of Mr. Lê Văn D1 and Mrs. Nguyễn Thị T2.

Uphold the First-instance Civil Judgment No. 04/2016/DSST dated May 27, 2014, of the People’s Court of Bỉm Sơn Town.

On December 30, 2016, N Law Limited Company (representing Mr. D1’s interests) and Mr. D1 and Mrs. T2 filed a request for cassation review of the appellate judgment.

In Protest Decision No. 06/2019/KN-DS dated February 14, 2019, the Chief Justice of the High People’s Court in Hanoi proposed the Judges’ Committee of the High People’s Court in Hanoi to conduct a cassation trial to cancel the aforementioned Appellate Civil Judgment and the First-instance Civil Judgment No. 04/2016/DSST dated May 27, 2016, of the People’s Court of Bỉm Sơn Town, Thanh Hoa Province; and transfer the case files to the People’s Court of Bỉm Sơn Town, Thanh Hoa Province for a first-instance retrial in accordance with the law.

At the cassation trial, the representative of the High People’s Procuracy in Hanoi proposed the Judges’ Committee of the High People’s Court in Hanoi to accept the protest of the Chief Justice of the High People’s Court in Hanoi.

COURT’S ANALYSIS:

[1] Mr. Lê Văn U and Mrs. Nguyễn Thị K had 03 common children: Mr. Lê Văn C1, Mr. Lê Văn C2, and Mrs. Lê Thị M. Mr. U also had 03 step-children (with his deceased wife): Mr. Lê Quang T1, Mr. Lê Văn D1, and Mr. Lê Quang D2 (who died as a martyr in 1972, unmarried and without children). In 1997, Mr. U died, and in 2006, Mrs. K died, both without leaving a will. On February 18, 2014, Mr. C1, Mr. C2, and Mrs. M filed a lawsuit requesting the Court to cancel Land Use Right Certificate No. C364176 dated September 23, 1994, in the name of Mrs. T2’s household in Village 5, T Commune, B Town, Thanh Hoa Province; and to divide the inheritance of land parcel No. 986, map sheet No. 1, cadastral map of T Commune, B Town, Thanh Hoa Province, which is currently managed and used by Mr. D1 and Mrs. T2.

[2] During the case resolution process, the parties consistently declared that the origin of the disputed land was reclaimed by Mr. U and Mrs. K. Mr. D1 and Mrs. T2 declared that in 1982, they moved from H District to B Town to live with Mr. U, Mrs. K, and Mrs. M on the above land parcel; in 1984, the couple was granted a land parcel at the gas station area (at Chỏm Vang) by the People’s Committee of T Commune, and they exchanged this granted land with Mr. U and Mrs. K for parcel No. 986 (parcel No. 40 according to the 1997 cadastral map) and were granted a land use right certificate; therefore, the disputed land is no longer the estate left by Mr. U and Mrs. K but is the private property of Mr. D1 and Mrs. T2. Mrs. M and Mr. C1 consistently declared that in 1984 (at which time Mr. C1 and Mr. C2 were still serving in the military and Mr. C1’s wife was teaching in another locality and could not apply for land), at the request of Mr. U, Mrs. M used Mr. D1’s name to apply for land for Mr. C1 and was granted a parcel at Chỏm Vang by the T Commune People’s Committee; however, because Mr. D1 and Mrs. T2 refused to move to the newly granted land, to avoid family conflict, Mr. C1 built a house on the new land and moved Mr. U, Mrs. K, and Mrs. M there to live; thus, although the newly granted land was in the name of Mr. U’s household, it belonged to Mr. C1.

[3] Official Dispatch No. 910/UBND-TNMT dated July 28, 2014, of the Bỉm Sơn Town People’s Committee stated:

[4] According to map 299 approved in 1985, the disputed land position belonged to parcel No. 986 with an area of 1,616m² “T” land without a designated user; according to the measurement map approved in December 1997, the disputed land belonged to parcel No. 40, map sheet No. 17 with an area of 1,263m², the cadastral book recorded 200m² of residential land and 1,063m² of garden land, and the user was Mr. D1; according to the cadastral map of T Commune measured and approved in December 2011, the disputed land position belonged to parcel No. 262, map sheet No. 56 with a total area of 1,571m², the book recorded 120m² of residential land, 1,451.4m² of other perennial crop land, and the user’s name was Mr. D1.

[5] Pursuant to Decision No. 201QĐ/ĐKTK dated July 14, 1989, of the General Department of Land Management on regulations for granting land use right certificates and Decision No. 117/NN/UBTH dated January 21, 1993, of the People’s Committee of Thanh Hoa Province on stable and long-term land allocation 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 for granting land use right certificates, the People’s Committee of B Town issued Decision No. 71/QD/UBBS dated September 23, 1994, allocating stable and long-term land and granting land use right certificates to 716 farming households of X Cooperative, T Commune, including Mrs. 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 mixed residential-agricultural land in parcel No. 986a, and the rest as agricultural production land.

[6] According to Submission No. 73/TT/UB dated August 20, 1994, of the People’s Committee of T Commune: The People’s Committee of T Commune proposed to the Chairman of the People’s Committee of B Town the approval for stable and long-term land allocation and the granting of land use right certificates to 716 farming households in the commune who had publicized their dossiers and submitted land use registration forms.

[7] In Decision No. 71/QD/UBBS dated September 23, 1994, the Bỉm Sơn Town People’s Committee decided to allocate stable and long-term land to 716 farming households in X Cooperative, T Commune. According to this decision, Mrs. T2’s household was allocated a total of 3,409m² of land, including 200m² of residential land and 876m² of mixed residential-agricultural land both in parcel No. 986a, and the rest was rice land in different parcels, and Mrs. T2’s household was granted the 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 and 556m² of mixed residential-agricultural land both in parcel No. 325 (which the parties declared as parcel No. 288), and the rest was rice land in different parcels.

[8] Thus, the documents in the case file show that the land allocation to farming households in T Commune was carried out according to State policy and with publicized records. When the T Commune People’s Committee and B Town People’s Committee implemented the land allocation and certificate granting policy for 716 farming households, including Mr. U’s and Mrs. T2’s households, Mr. U and Mrs. K were both still alive but did not submit applications or declare the disputed land parcel; the two elders only declared land parcel No. 325 (which Mr. D1 and Mrs. T2 declared as the land exchanged for them) and they were granted a certificate for this parcel, while Mrs. T2’s household was granted a certificate for parcel No. 986a (the disputed parcel 986). Furthermore, after Mrs. T2’s household was granted the certificate for the disputed land, no one filed a complaint; only in 2008, after Mr. U and Mrs. K had died, did the dispute between their children arise. Therefore, there are grounds to determine that Mr. U and Mrs. K exchanged land with Mrs. T2 and Mr. D1.

[9] The first-instance Court held that according to map 299 of 1985, Mrs. K and Mr. U were the users of the disputed land, thus the disputed land was the estate of Mr. U and Mrs. K and divided Mrs. K’s inheritance, which was incorrect.

[10] After the first-instance trial, Mr. D1 and Mrs. T2 appealed the entire judgment. The appellate Court determined that parcel No. 325 in the name of Mr. U’s household was the private property of Mr. C1’s couple, while parcel No. 986 in the name of Mrs. T2’s household was the estate left by Mr. U and Mrs. K, thereby rejecting the appeal of Mr. D1 and Mrs. T2 and upholding the first-instance Court’s decisions, which was a serious error damaging the legal rights and interests of Mr. D1 and Mrs. T2.

[11] Regarding procedure: In resolving the case, the first-instance and appellate Courts failed to include Mr. T1 and the two children of Mr. D1 and Mrs. T2 in the proceedings as persons with related rights and obligations, which was an omission.

For these reasons,

DECISION:

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

Accept the protest of the Chief Justice of the High People’s Court in Hanoi.

1. Cancel Appellate Civil Judgment No. 85/2016/DSPT dated September 16, 2016, of the People’s Court of Thanh Hoa Province and cancel First-instance Civil Judgment No. 04/2016/DSST dated May 27, 2016, of the People’s Court of Bỉm Sơn Town, Thanh Hoa Province regarding the case “Dispute over inheritance of assets” between the plaintiffs Mr. Lê Văn C1, Mr. Lê Văn C2, and Mrs. Lê Thị M and the defendants Mr. Lê Văn D1, Mrs. Nguyễn Thị T2, and other persons with related rights and obligations.

2. Transfer the case files to the People’s Court of Bỉm Sơn Town, Thanh Hoa Province for a first-instance retrial in accordance with the law.

PRECEDENT CONTENT

“[8] Thus, the documents in the case file show that the land allocation to farming households in T Commune was carried out according to State policy and with publicized records. When the T Commune People’s Committee and B Town People’s Committee implemented the land allocation and certificate granting policy for 716 farming households in T Commune, including Mr. U’s and Mrs. T2’s households, Mr. U and Mrs. K were both still alive but did not submit applications or declare the disputed land parcel; the two elders only declared land parcel No. 325 (which Mr. D1 and Mrs. T2 declared as the land exchanged for them) and they were granted a certificate for this parcel, while Mrs. T2’s household was granted a certificate for parcel No. 986a (the disputed parcel 986). Furthermore, after Mrs. T2’s household was granted the land use right certificate for the disputed land, no one filed a complaint; only in 2008, after Mr. U and Mrs. K had died, did the dispute between their children arise. Therefore, there are grounds to determine that Mr. U and Mrs. K exchanged land with Mrs. T2 and Mr. D1.

[9] The first-instance Court held that according to map 299 of 1985, Mrs. K and Mr. U were the users of the disputed land, thus the disputed land was the estate of Mr. U and Mrs. K and divided Mrs. K’s inheritance, which was incorrect.”