Precedent No. 68/2023/AL was adopted by the Council of Justices of the Supreme People’s Court on August 18, 2023, and promulgated under Decision No. 364/QD-CA dated October 01, 2023, by the Chief Justice of the Supreme People’s Court.
1. What is a precedent?
Precedents are legal arguments and rulings in legally effective judgments and decisions of the Courts on specific cases, selected by the Council of Justices 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 No. 04/2019/NQ-HĐTP)
Precedents selected must meet the following criteria:
– Have value in clarifying legal provisions that have different interpretations, analyzing and explaining legal issues and events, and indicating the principles, guidelines, and legal norms to be applied in a specific case or expressing equity toward issues not yet specifically regulated by law;
– Have a normative nature;
– Have guidance value for the uniform application of the law in adjudication.
2. Precedent No. 68/2023/AL on the right of heirs who are overseas Vietnamese to receive inheritance in kind being housing
2.1. Source of the precedent
Cassation Decision No. 06/2019/DS-GĐT dated March 18, 2019, of the Council of Justices of the Supreme People’s Court regarding the civil case “Dispute over inheritance, claim for contribution to nurturing, care, and preservation of house and land, and claim for house and land” between the plaintiff, Ms. Nguyen Tuy H, and the defendant, Ms. Ly Lan H1; with 06 persons with related rights and obligations.
Location of the precedent content:
Paragraph 5 of the “Court’s Reasoning” section.
2.2. Overview of the precedent content
– Case situation:
The person leaving the inheritance, which includes ownership of a house and land use rights, died before the 2013 Land Law and the 2014 Housing Law took legal effect. The dispute over the division of inheritance was resolved by the Court at a time when the 2013 Land Law and the 2014 Housing Law were in effect.
– Legal solution:
In this case, the Court shall apply the 2013 Land Law and the 2014 Housing Law to resolve the matter.
In cases where an heir is an overseas Vietnamese, the heir is entitled to receive the inheritance in kind being a house when they satisfy the conditions to own a house according to the 2014 Housing Law and the inheritance can be divided in kind.
Legal provisions related to the precedent:
– Point d, Clause 1, Article 169; Article 186 of the Land Law of Vietnam 2013;
– Clause 1, Point b, Clause 2, Article 8 of the 2014 Housing Law.
Keywords of the precedent:
“Overseas Vietnamese”; “Conditions for receiving housing”, “Applicable law”.
FACTS OF THE CASE:
I. Case requesting inheritance division:
In the petition dated August 24, 2009, September 24, 2009; supplemented on October 22, 2009, and during the proceedings, the plaintiff, Ms. Nguyen Tuy H, stated:
Her parents, Mr. Ly Vinh K and Ms. Nguyen Thi B, lived together and had one common child, Ms. Nguyen Tuy H. In 1950, Mr. K and Ms. B no longer lived together. Later, Mr. K married Ms. Nguyen Ngoc H2 and had one common child, Ms. Ly Lan H1.
The origin of the house and land at 151B N Street, Ward M, District P, Ho Chi Minh City belonged to Mr. K and Ms. H2. Mr. K died in 1978, Ms. B died in 2000, and Ms. H2 died in 2009. Mr. K, Ms. B, and Ms. H2 died without leaving a will.
In fact, in Civil Appellate Judgment No. 6/DS-PT dated June 26, 1981, the Appellate Court of the Supreme People’s Court in Ho Chi Minh City identified the common property of Mr. K and Ms. H2 as the house at 151B G Street (now N Street), Ward M, District P, Ho Chi Minh City. Simultaneously, it awarded Ms. H2 ownership of the entire property in kind, including the aforementioned house (property attached to the land) and several living essentials within the house, and she was required to compensate the other heirs with a sum of money to obtain full ownership of the house. The judgment did not divide the residential land use rights according to land title No. 1947 with an area of 500m2 on which house 151B G Street sits, and the residential land use rights according to land title No. 1948 with an area of 440m2, which were the common property of Mr. K and Ms. H2. Therefore, the aforementioned land remains the common property of Mr. K and Ms. H2.
The two land titles No. 1947 and No. 1948 established in 1970 no longer accurately reflect the current land area, so Ms. H and Ms. H1 agreed to use the current status drawing of house 151B requested by the Court from the authorities on March 11, 2011, which was verified by the People’s Committee of District P as the basis for determination. Now she requests the division of inheritance according to the law, specifically requesting to receive in kind a land area of 120m2 (7m wide bordering alley 151B N Street and 17.14m long adjacent to the land boundary of house 151C N Street of Mr. Tran Quoc H3).
The defendant, Ms. Ly Lan H1, authorized Ms. Huynh Thi Kim L to represent and state:
She agrees with Ms. H’s statements regarding the family relationships of Mr. Ly Vinh K, Ms. Nguyen Thi B, and Ms. Nguyen Ngoc H2 and the origin of the house and land located at 151B N Street, Ward M, District P, Ho Chi Minh City. Mr. K and Ms. H2 died without leaving a will. Therefore, representing Ms. Ly Lan H1, she agrees with the plaintiff Ms. Nguyen Tuy H’s request to be divided and receive an inheritance portion of 120m2 of land (7m wide bordering alley 151B N Street and 16.14m long adjacent to the land boundary of house 151C N Street of Mr. Tran Quoc H3).
2. Case claiming for contribution to nurturing, care, and preservation of house and land:
According to the application dated January 29, 2010, of Mr. Nguyen Quang D and during the proceedings, Ms. Tran Thi Thu H4, as the authorized representative, stated.
The origin of the land located at 151B N Street, Ward M, District P, Ho Chi Minh City belonged to Ms. Nguyen Ngoc H2 and Mr. Ly Vinh K according to land title No. 1947, area 500m2, adjacent to land title No. 1948, area 440m2. These two titles were held in the names of Mr. K and Ms. H2 for use since 1970.
Ms. H2 was the biological aunt of Mr. Nguyen Quang D. Mr. D lived with Mr. K and Ms. H2 at the aforementioned house from 1971. Ms. H2 had one child with a legal birth certificate, Ms. Ly Lan H1. After Mr. K died, Ms. H1 illegally exited to the United States in 1978.
Ms. H2 was the only person in the house, frequently ill and found it difficult to preserve the land and house; to prepare for the event of serious illness, Ms. H2 asked Mr. D to transfer his household registration to live with her to preserve the property. Mr. D officially moved his household registration to Ms. H2’s house on February 12, 1985. At Ms. H2’s request, in 1984, Mr. D sold his house at 524/27 K Street, Ward B, District P to move to 151B N Street to help nurture and care for Ms. H2 until she passed away in March 2009 at the aforementioned house 151B.
In 1998, Ms. H2 emigrated to the United States for family reunification. Before leaving, Ms. H2 authorized Mr. D to manage, use, and take responsibility for overseeing the house and land under an Authorization Contract established at Notary Office A in Ho Chi Minh City on January 03, 1998.
At the end of 2006, Ms. H2 returned to Vietnam for temporary residence at house 151B N Street, Ward M, District P for 02 years. Later, Ms. H2 wanted to stay in Vietnam to live, so Mr. D performed the procedures to guarantee Ms. H2’s household registration. Ms. H2 was old and weak, frequently ill; Mr. D alone cared for, nurtured, and took Ms. H2 for medical treatment. On March 21, 2009, Ms. H2 passed away; Mr. D alone had to take care of the entire funeral and cremation for Ms. H2 with an amount of 26,000,000 VND.
In June 2009, Mr. D accidentally discovered at the headquarters of the People’s Committee of Ward M, District P, the posting of Document No. 324/CC7 dated April 20, 2009, from Notary Office K, Ho Chi Minh City, attached with an inheritance declaration document stating that the person requesting to receive the inheritance was Ms. H1, the daughter of Mr. K and Ms. H2. Regarding the request to receive the inheritance, Ms. H1 did not discuss or tell Mr. D anything.
Now Mr. D requests Ms. Ly Lan H1 to divide 180m2 of land to him as his contribution to nurturing, caring, and handling the funeral for Ms. H2 and overseeing and managing the house and land for nearly 30 years. Furthermore, as Ms. H1 resides in the US, holds US citizenship, and does not live or work in Vietnam, Mr. D requests to receive the entire property in kind and pay the value to Ms. H1.
In the counterclaim dated July 29, 2014, of the defendant Ms. Ly Lan H1 and during the proceedings, Ms. Tran Ngoc Kim C, as the authorized representative, stated:
Regarding the blood relationship and the origin of house 151B N Street, Ward M, District P, Ho Chi Minh City, she agrees with the plaintiff’s testimony.
In 2009, after Ms. H2 passed away, Ms. H1 proceeded with the inheritance declaration procedures under Inheritance Declaration Document No. 10475 certified by Notary Office K, Ho Chi Minh City on June 16, 2009; she declared registration fees according to house and land registration fee notice No. 1543 from the Tax Department of District P on June 22, 2009. When the inheritance declaration procedures were carried out, Mr. D was aware and did not have any opinion regarding Ms. H1’s declaration. At the same time, the inheritance declaration was publicly posted at the People’s Committee of Ward M, District P, and no documents regarding disputes or complaints related to the house were received.
Regarding the funeral costs for Ms. H2, Ms. H1 paid Mr. D the amount of 10,000,000 VND; as for other amounts, Ms. H1 has no obligation to pay Mr. D. During the use of the house and land, Mr. D operated a coffee shop and has collected profits since 1985.
Therefore, she does not agree with Mr. D’s request for 180m2 of land as contribution for nurturing, caring, handling the funeral, and overseeing the house and land for Ms. H2. Simultaneously, she requests Mr. Nguyen Quang D and his family to return the house and land to Ms. Ly Lan H1 as soon as the Court’s judgment or decision takes legal effect.
The persons with related rights and obligations, Ms. Nguyen Thị Hương L1, Mr. Nguyen Quang D1, and Ms. Huynh Thi Bich N, all agreed with Mr. Nguyen Quang D’s statements.
Under Case Consolidation Decision No. 345/2013/QDST-DS dated March 29, 2013, the People’s Court of Ho Chi Minh City decided to consolidate the first-instance civil case No. 111/2010/TLST-ST dated March 23, 2010, of the People’s Court of Ho Chi Minh City regarding “Claim for contribution, nurturing” between plaintiff Mr. Nguyen Quang D and defendant Ms. Ly Lan H1 into the first-instance civil case No. 16/2013/TLST-DS dated January 07, 2013, of the People’s Court of Ho Chi Minh City regarding “Inheritance dispute” between plaintiff Ms. Nguyen Tuy H and defendant Ms. Ly Lan H1.
In First-Instance Civil Judgment No. 409/2015/DS-ST dated May 05, 2015, the People’s Court of Ho Chi Minh City decided:
To accept the request of the plaintiff, Ms. Nguyen Tuy H.
1/ To record the voluntariness of Ms. Nguyen Tuy H and Ms. Ly Lan H1 (represented by Ms. Huynh Thi Kim L) as follows:
1.1/ Identify the inheritance left by Mr. Ly Vinh K and Ms. Nguyen Ngoc H2 as the land use rights of 698.14m2 located at 151B N Street, Ward M, District P, Ho Chi Minh City.
1.2/ The first line of inheritance of Mr. Ly Vinh K includes Ms. Nguyen Ngoc H2, Ms. Nguyen Tuy H, and Ms. Ly Lan H1.
1.3/ Ms. Nguyen Tuy H is divided and receives in kind a land area of 120m2 with a width of 7m facing alley 151B N Street, Ward M, District P… according to the current status drawing established by Q Map Surveying and Construction Design Service Co., Ltd. on March 11, 2011, which was verified by the District P People’s Committee on April 14, 2011.
1.4/ Ms. Nguyen Tuy H has the right to contact competent authorities to perform land subdivision procedures and register to be granted the Land Use Rights Certificate for the aforementioned land according to the law.
2/ To accept the request of Mr. Nguyen Quang D.
2.1/ Determine that Mr. Nguyen Quang D has contributed to the nurturing, care, and management of the entire funeral for Ms. Nguyen Ngoc H2 and the oversight and management of the house and land at 151B N Street, Ward M, District P, Ho Chi Minh City.
2.2/ Mr. Nguyen Quang D is divided 120m2 of land, L-shaped, viewed from the outside: on the left bordering the land divided to Ms. Nguyen Tuy H and on the right bordering the main house 151B N Street, Ward M, District P according to the current status drawing established by Q Map Surveying and Construction Design Service Co., Ltd. on March 11, 2011, verified by District P People’s Committee on April 14, 2011, as contribution for nurturing, care, funeral arrangements for Ms. Nguyen Ngoc H2 and management of the house and land at 151B N Street, Ward M, District P, Ho Chi Minh City.
2.3/ Mr. Nguyen Quang D receives the entire property in kind regarding the inheritance portion of Ms. Ly Lan H1, including a land area of 458.14m2 and the construction part (the remaining land status after dividing to Ms. H and Mr. D) according to the drawing verified on April 14, 2011, because Ms. H1 does not meet the conditions to hold title to the house and land according to regulations.
2.4/ Mr. Nguyen Quang D is responsible for paying Ms. Ly Lan H1 the entire value of the land use rights and house construction value at 151B N Street, Ward M, District P, Ho Chi Minh City that Ms. H1 inherits, amounting to 23,476,516,675 VND (twenty-three billion four hundred seventy-six million five hundred sixteen thousand six hundred seventy-five dong), within 06 months from the date the judgment takes legal effect.
Additionally, the first-instance court decided on court fees and the right to appeal.
On May 13, 2015, Ms. Tran Ngoc Kim C, representing the defendant, appealed against the division of 120m2 to Mr. D and requested that Ms. H1 receive the entire property in kind.
On May 15, 2015, Ms. Tran Thị Thu H4, representing Mr. D, appealed requesting a re-valuation of the disputed house and land.
On May 20, 2015, the Director of the People’s Procuracy of Ho Chi Minh City protested the aforementioned First-Instance Civil Judgment under appellate procedures for the following reasons: The first-instance judgment’s ruling to let Mr. D receive the entire property in kind inherited by Ms. H1 from Mr. K and Ms. H2 and reimburse the value to Ms. H1 was incorrect. Furthermore, the decision for Mr. D to pay Ms. H1 23,476,516,675 VND within 6 months of the judgment becoming effective was improper.
In Appellate Civil Judgment No. 71/2016/DS-PT dated April 21, 2016, the High People’s Court in Ho Chi Minh City decided:
To partially accept the protest of the Director of the People’s Procuracy of Ho Chi Minh City; accept the appeal (regarding valuation) of Mr. Nguyen Quang D represented by Ms. Tran Thi Thu H4; reject the appeal of Ms. Ly Lan H1; amend the first-instance judgment.
1/ Identify the first line of inheritance of Mr. Ly Vinh K and Ms. Nguyen Ngoc H2 as Ms. Nguyen Tuy H and Ms. Ly Lan H1.
2/ Identify the inheritance left by Mr. Ly Vinh K and Ms. Nguyen Ngoc H2 as land use rights of 698.33m2 at 151B N Street, Ward M, District P, Ho Chi Minh City. Separately, Ms. H2 also left the value of house 151B N Street, Ward M, District P, Ho Chi Minh City.
3/ Determine that Mr. Nguyen Quang D has contributed to the nurturing, care, funeral arrangements for Ms. Nguyen Ngoc H2 and the oversight and management of the house and land at 151B N Street, Ward M, District P, Ho Chi Minh City.
Rulings:
1/ Accept the request of the plaintiff, Ms. Nguyen Tuy H.
Record the voluntariness of Ms. Nguyen Tuy H and Ms. Ly Lan H1 (represented by Ms. Huynh Thi Kim L) as follows: Ms. H is divided and receives in kind 120m2 of land, width 7m facing alley 151B N Street, Ward M, District P (measured from the boundary adjacent to house 151C N Street) and length 17.14m adjacent to the boundary of house 151C N Street, Ward M, District P, Ho Chi Minh City, which is the house of Mr. Tran Quoc H3, according to the status drawing by C Co., Ltd. verified by District P People’s Committee on December 17, 2015.
Ms. Nguyen Tuy H has the right to contact competent authorities to perform land subdivision procedures and register to be granted the Land Use Rights Certificate for the aforementioned land according to the law.
2/ Accept the request of Mr. Nguyen Quang D.
Mr. Nguyen Quang D is divided a portion for contribution to the preservation and protection of the property block equivalent to 120m2 of land, L-shaped, viewed from the outside: on the left bordering the land divided to Ms. Nguyen Tuy H and on the right bordering the main house 151B N Street, Ward M, District P (front width 2.85m facing alley 151B N Street; back width 9.85m; length 24.365m adjacent to main house 151B N Street and the remaining left length is 7.225m; according to the status drawing by C Co., Ltd. verified by District P People’s Committee on December 17, 2015.
3/ Mr. Nguyen Quang D receives the entire property in kind for the portion Ms. Ly Lan H1 is entitled to, including land area of 458.33m2 and the house construction part according to the status drawing by C Co., Ltd., verified on December 17, 2015. Mr. Nguyen Quang D must pay Ms. Ly Lan H1 the entire value of the land use rights and house construction value at 151B N Street, Ward M, District P, Ho Chi Minh City, which Ms. H1 inherits, in the amount of 15,822,085,210 VND.
Additionally, the appellate court decided on court fees.
After the appellate trial, Ms. Ly Lan H1 filed a request for cassation review of the aforementioned appellate civil judgment.
In Decision No. 06/QDKNGDT-VKS-DS dated October 18, 2018, the Director of the Supreme People’s Procuracy protested against the Appellate Civil Judgment No. 71/2016/DS-PT dated April 21, 2016, of the High People’s Court in Ho Chi Minh City; requesting the Council of Justices of the Supreme People’s Court to conduct a cassation trial to annul the aforementioned appellate civil judgment and First-Instance Civil Judgment No. 409/2015/DS-ST dated May 05, 2015, of the People’s Court of Ho Chi Minh City regarding the part claiming contribution for nurturing, oversight, and preservation of house and land; and to transfer the case file to the People’s Court of Ho Chi Minh City for first-instance retrial according to the law.
At the cassation trial, the representative of the Supreme People’s Procuracy withdrew the protest regarding the procedural part and requested the Council of Justices of the Supreme People’s Court to accept the Cassation Protest Decision of the Director of the Supreme People’s Procuracy.
COURT’S REASONING:
[1] At the Court, the plaintiff Ms. Nguyen Tuy H and the defendant Ms. Ly Lan H1 agreed to divide 120m2 of land to Ms. H out of the total 698.33m2 of land left by Mr. Ly Vinh K and Ms. Nguyen Ngoc H2. Therefore, the recording of the voluntariness of the parties by the first-instance and appellate courts is in accordance with legal regulations (this content was not protested by the Director of the Supreme People’s Procuracy).
[2] Regarding property valuation: On February 01, 2016, the appellate court re-valued the house and land at 151B N Street, Ward M, District P, Ho Chi Minh City but failed to notify the plaintiff and defendant, which is not in accordance with the law and contradicts Clause 2, Article 92 of the 2004 Civil Procedure Code, amended and supplemented in 2011 (now Clause 4, Article 104 of the 2015 Civil Procedure Code). However, at the cassation trial, the representative of the Supreme People’s Procuracy withdrew the protest and did not request the Trial Panel to consider the valuation of the aforementioned property, so the Cassation Trial Panel will not consider it.
[3] Regarding the calculation of contribution for Mr. Nguyen Quang D: In 1978, Ms. Ly Lan H1 emigrated to the United States, leaving only Ms. Nguyen Ngoc H2 living at 151B N Street, Ward M, District P, Ho Chi Minh City. According to the declaration files, since 1982, Mr. D (Ms. H2’s nephew) lived with Ms. H2 at 151B N Street, and by 1985, Mr. D and his children moved their household registration to this address. In 1998, Ms. H2 emigrated to the United States and signed an authorization for Mr. D to manage and use the house (Authorization Contract certified by Notary Office A Ho Chi Minh City on January 03, 1998). In 2007, Ms. H2 returned to settle in Vietnam, and Mr. D was the guarantor for Ms. H2’s repatriation procedures (According to Mr. D’s commitment letter dated December 17, 2007, certified by the Ward M People’s Committee on December 18, 2007). At this time, Ms. H2 was of advanced age; Ms. H1 had emigrated in 1978 and no one else looked after Ms. H2, so Mr. D was the person directly caring for and nurturing Ms. H2 until her death, and Mr. D was also the person who organized the entire funeral (admitted by Ms. H1’s authorized representative).
[4] Thus, there is a basis to determine that Mr. D contributed to overseeing, preserving, and protecting the property block; simultaneously, Mr. D also contributed to caring for, nurturing, and the funeral of Ms. H2. However, at the Court, the parties all identified that when Mr. D managed and used the house at 151B N Street, he operated a coffee shop for profit (Business Registration Certificate for individual business household No. 1657/HKD dated July 31, 2000). In this case, it was necessary to clarify the contribution for property preservation, the costs for care, nurturing, and funeral upon Ms. H2’s death, while also clarifying the income from the coffee business to determine an appropriate contribution for Mr. D. The first-instance and appellate courts failed to clarify these issues but instead divided the contribution in kind as 120m2 out of the total 698.33m2 of land to Mr. D (equivalent to an inheritance portion like Ms. Nguyen Tuy H), which is groundless and affects Ms. H1’s rights.
[5] Regarding the transfer of the property in kind which is the inheritance portion of Ms. Ly Lan H1 to Mr. Nguyen Quang D: According to Clause 3, Article 186 of the 2013 Land Law: “In case all heirs of land use rights, ownership of houses, and other assets attached to the land are foreigners or overseas Vietnamese who do not belong to the subjects entitled to purchase houses attached to land use rights in Vietnam as prescribed in Clause 1 of this Article, the heirs shall not be granted a Certificate of land use rights, ownership of houses, and other assets attached to the land but are entitled to transfer or donate the inherited land use rights…”. According to Clause 4, Article 186 of the 2013 Land Law: “In case among the heirs, there are overseas Vietnamese not belonging to the subjects entitled to purchase houses attached to land use rights in Vietnam, while others are entitled to inherit land use rights according to land law and the inheritance has not been divided for each heir, the heirs or authorized representatives shall submit a file on inheritance to the land registration agency for update in the land register. After the division of inheritance is resolved, the Certificate of land use rights, ownership of houses, and other assets attached to land shall be granted to those entitled to such certificates; for overseas Vietnamese not belonging to the subjects entitled to purchase houses attached to land use rights in Vietnam, the inheritance portion shall be resolved according to Clause 3 of this Article”. Thus, if Ms. H1 is not entitled to be granted a Certificate of land use rights, she is still entitled to transfer or donate the inherited land use rights. The first-instance and appellate courts based their decisions on Article 186 of the 2013 Land Law to determine that Ms. H1 was not to be granted a certificate of land use rights and transferred the entire property in kind for Ms. H1’s portion, including house and land on an area of 485.33m2, to Mr. D, with Mr. D paying Ms. H1 the value of the land use rights and construction at 15,822,058,210 VND, which was contrary to legal regulations. On the other hand, at the time of the appellate trial, the 2014 Housing Law was already in effect. According to Clause 1 and Point b, Clause 2, Article 8 of the 2014 Housing Law, Ms. H1 was eligible to receive a house inheritance in Vietnam. Due to the change in law, the appellate court should have amended the first-instance judgment and transferred the entire property in kind for the portion to Ms. H1.
[6] Therefore, it is necessary to accept the protest of the Director of the Supreme People’s Procuracy to annul part of the appellate civil judgment and part of the first-instance civil judgment regarding the division of contribution for nurturing, oversight, and preservation of house and land and the transfer of property in kind for first-instance retrial in accordance with the law.
For the above reasons,
DECISION:
Pursuant to Clause 2, Article 337, Clause 3, Article 343, and Article 345 of the Civil Procedure Code;
1. Accept Cassation Protest Decision No. 06/QDKNGDT-VKS-DS dated October 18, 2018, of the Director of the Supreme People’s Procuracy.
2. Annul part of the Appellate Civil Judgment No. 71/2016/DS-PT dated April 21, 2016, of the High People’s Court in Ho Chi Minh City and annul part of the First-Instance Civil Judgment No. 409/2015/DS-ST dated May 05, 2015, of the People’s Court of Ho Chi Minh City between plaintiff Ms. Nguyen Tuy H and defendant Ms. Ly Lan H1 and persons with related rights and obligations regarding the division of contribution for preservation and protection of the property block equivalent to 120m2 of land to Mr. Nguyen Quang D and the receipt of Ms. Ly Lan H1’s entire property in kind by Mr. Nguyen Quang D.
3. Transfer the case file to the People’s Court of Ho Chi Minh City for retrial according to first-instance procedures, in accordance with the law.
CASE PRECEDENT CONTENT:
“[5] … Thus, if Ms. H1 is not entitled to be granted a Certificate of land use rights, she is still entitled to transfer or donate the inherited land use rights. The first-instance and appellate courts based their decisions on Article 186 of the 2013 Land Law to determine that Ms. H1 was not to be granted a certificate of land use rights and transferred the entire property in kind for Ms. H1’s portion, including house and land on an area of 485.33m2 to Mr. D, with Mr. D paying Ms. H1 the value of the land use rights and construction at 15,822,058,210 VND, which was contrary to legal regulations. On the other hand, at the time of the appellate trial, the 2014 Housing Law was already in effect. According to Clause 1 and Point b, Clause 2, Article 8 of the 2014 Housing Law, Ms. H1 was eligible to receive a house inheritance in Vietnam. Due to the change in law, the appellate court should have amended the first-instance judgment and transferred the entire property in kind for the portion.
