CASE LAW NO. 33/2020/AL On the case where an individual is allocated land by the State but does not use it, instead permitting another party to manage and use it continuously and without interruption for an extended period (Please note that this image is not related to the specific case being discussed).

CASE LAW NO. 33/2020/AL

On the case where an individual is allocated land by the State but does not use it, instead permitting another party to manage and use it continuously and without interruption for an extended period

Approved by the Judicial Council of the Supreme People’s Court on February 5^th, 2020, and published under Decision No. 50/QĐ-CA on February 25^th, 2020, by the Chief Justice of the Supreme People’s Court.

Source of the Case Law:

The Cassation Decision No. 34/2018/DS-GĐT dated June 26^th, 2018, of the High People’s Court in Hà Nội concerning the case “Dispute over immovable property and eminent domain compensation” in Hưng Yên Province, between the plaintiff Mrs. Bùi Thị P, Mr. Lê Ngọc T1, Ms. Lê Thị Thanh X, and the defendant Mr. Lê Ngọc T2; and interested parties including 6 people.

Location of the Case Law’s Content:

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

Summary of the Case Law:

– Case Background:

An individual was allocated a parcel of land by the State but did not personally utilize it, instead permitting another party to assume continuous and uninterrupted use and management for an extended duration. Throughout this period, the second party made substantial improvements to the land, constructed permanent dwellings, and registered land use rights without encountering any objection from the original grantee.

– Legal Resolution:

In light of these circumstances, the Court must reject the claim to reclaim the land use rights. The prolonged and uncontested use, coupled with the significant improvements made by the second party, solidified their rightful claim to the land.

Relevant Legal Provisions:

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

– Article 184 of the Civil Code of 2015.

Keywords:

“Dispute over land use rights”; “Allowing another person to manage and use it continuously and without interruption for an extended period”; “Construction of permanent dwellings”; “Registration of land use rights.”

CASE DETAILS

In their complaint and during the course of legal proceedings, the plaintiffs, Mrs. Bùi Thị P, Mr. Lê Ngọc T1, and Ms. Lê Thị Thanh X, represented by Mrs. Bùi Thị P under power of attorney, presented the following factual background:

Mr. Lê Ngọc U and Mrs. Bùi Thị T were originally from Village Đ, Commune Đ1, District P, Hưng Yên Province. Both individuals worked, resided, and ultimately passed away in Lạng Sơn Province. Their sole child, Mr. Lê Ngọc H, married Mrs. Bùi Thị P in 1985. In 1973, Mr. Lê Ngọc U obtained a 1,079m² land plot in Village Đ, Commune Đ1, District P, Hưng Yên Province from the local People’s Committee.

In 1976, Mr. Lê Ngọc H constructed a three-room thatched-roof house, an attic, and auxiliary facilities including a kitchen, well, bathroom, and toilet on this land for Mr. Lê Ngọc U and Mrs. Bùi Thị T upon their retirement. Subsequently, they relocated to another house within the village, which had been bequeathed by Mrs. Bùi Thị T’s parents. In 1977, Mr. Lê Ngọc C1, the younger brother of Mr. Lê Ngọc U, borrowed the aforementioned land and house for his son, Mr. Lê Ngọc T2, for temporary residential purposes.

In 1985, Mrs. P married Mr. H. By this time, Mr. U, Mrs. T, and Mr. H were residing at 53 C, Ward D, City L, Lạng Sơn Province.

On January 22^nd, 1994, Mrs. T passed away, followed by Mr. U on December 20^th, 1995, both without leaving a will (both deceased in Lạng Sơn). According to Mrs. P’s statement, prior to Mrs. T’s passing, she entrusted Mrs. P with the 1973 land allocation document. However, this document was purportedly destroyed in 2008 due to a historic flood in Lạng Sơn.

In 2008, Mr. Lê Ngọc T2 traveled to Lạng Sơn to meet Mr. H and requested a power of attorney to claim eminent domain compensation from the State for the expansion of Road 38B. In June 2009, Mr. H passed away, also without leaving a will, but instructed Mrs. P and her children to return to Lạng Sơn and demand the return of the land and house from Mr. T2.

Mrs. P and her children subsequently demanded that Mr. T2’s family vacate the entire house and land, and remit the VND 398,638,000 in eminent domain compensation received from the State in 2008.

As the defendant, Mr. Lê Ngọc T2 asserts the following:

The land currently under his family’s management and use was initially applied for by his father, Mr. Lê Ngọc C1, in 1974, utilizing Mr. Lê Ngọc U (Mr. Lê Ngọc C1’s older brother)’s name as the nominal holder. However, Mr. C1 was the de facto recipient of the land. In 1975, Mr. C1 granted Mr. T2’s family permission to reside on the land.

From the time of Mr. T2’s family’s occupation until the passing of Mr. U and Mr. H, Mr. U’s family never asserted ownership of the land, nor did either Mr. U or Mr. H construct any buildings on it. The entirety of the house and assets on the land were built and established by Mr. T2’s family. In 1998, Mr. T2 formally registered as the land user. In 2008, when the State reclaimed a portion of the land to expand Road 38B, Mr. T2’s family received compensation exceeding 300 million VND.

Due to the absence of their names in official records, the People’s Committee of Commune Đ1 required Mr. T2 to obtain a commitment letter from the individual listed in file 299. As a result, he traveled to Lạng Sơn to request the commitment letter from Mr. H. Mr. H subsequently issued a commitment letter dated April 10th, 2008, confirming that the entire land plot granted by the commune to Mr. U since 1974 had been assigned for Mr. T2’s use and that neither Mr. U’s family nor Mr. H had, or would have, any objections regarding the land. Mr. T2 categorically denies all claims put forth by Mrs. P and her children.

According to the People’s Committee of Commune Đ1, the land currently managed and used by Mr. T2’s family is depicted on map 299, created in 1981, covering an area of 1,073m² as plot number 117 on map sheet number 15. The land registration book from 1986, on page 128, lists the land user as Lê Ngọc U1. The People’s Committee of Commune Đ1 verified and concluded that Lê Ngọc U1, although from the same village, is not the landowner listed in the land registration book; the correct individual is Lê Ngọc U.

As per the cadastral map finalized in December 1998 by Commune Đ1, on Map Sheet No. 31, the land parcel managed and used by Mr. Lê Ngọc T2 comprises four parcels: Parcel No. 269 (land) with an area of 574.4m²; Parcel No. 251 (pond) with an area of 261.2m²; Parcel No. 286 (pond) with an area of 152.9m²; and Parcel No. 301, with an area of 149.1m², serving as the corridor for Road 38B. The total area of these parcels and the corridor is 1,177.6m². According to the 1998 land registration book, on pages 86 and 87, all of these parcels are registered under the name of Lê Ngọc T2.

In the First-instance Civil Judgment No. 01/2015/DS-ST dated March 31^st, 2015, the Phù Cừ District People’s Court decided:

1. Partially accepted the claims of Ms. Lê Thị Thanh X and Mr. Lê Ngọc T. Bùi Thị P has no rights related to the inheritance of Mr. Lê Ngọc U and Mrs. Bùi Thị T’s estate.
2. Granted Mr. Lê Ngọc T2 and Mrs. V, who are managingand usingan actual measurement area of 990m² since August 8^th, 2014, including 816m² of residential land and 174m² of ponds (with accompanying diagram). Mr. Lê Ngọc T2 and Ms. V are obligated to register their land use rights at competent state authorities, according to land laws. Dwellings, constructions, trees, vegetation on the land belong to Mr. T and Mrs. V.
3. Ordered Mr. Lê Ngọc T2 and Mrs. V to pay Ms. Lê Thị Thanh X and Mr. Lê Ngọc T1 the inheritance value from Mr. Lê Ngọc U and Mrs. Bùi Thị T’s estate in the amount of VND 191,864,200.

Additionally, the first-instance ruled on court fees and the right to appeal of litigants.

On April 15^th, 2015, the defendant, Mr. Lê Ngọc T2 appealed against a part of the judgment.

In Appellate Civil Judgment No. 25/2017/DS-PT dated September 28^th, 2017, the Hưng Yên Provincial People’s Court decided:

1. Partially accepted the claims and appeals of Ms. Lê Thị Thanh X, Mr. Lê Ngọc T1, and Mrs. Bùi Thị P(also known as Bùi Thị Hương P).
2. Amended the First-instance Civil Judgment No. 01/2015/DS-ST dated March 31^st, 2015 of the Phù Cừ District People’s Court, Hưng Yên Provinceas follows:
3. Assigned 621.2m²of land, parcel No. 117, Sheet No. 15, map No. 299 dated 1981 in Village Đ, Commune Đ1, P District under the name of Mr. Lê Ngọc U to Mr. Lê Ngọc T2 and Mrs. Doãn Thị V.
4. Assigned 369m²(including 174.2m²of pond) of land, parcel No. 117, Sheet No. 15, map No. 299 dated 1981 in Village Đ, Commune Đ1, P District under the name of Mr. Lê Ngọc U to Ms. Lê Thị Thanh X, Mr. Lê Ngọc T1, and Mrs. Bùi Thị P, along with the property on the land including a house with corrugated iron roof, a storehouse, a pen for livestock, and a wall on the western side within the assigned land. Mrs. Bùi Thị P manages all properties of Ms. Lê Thị Thanh X and Mr. Lê Ngọc T1 (assignment of land, property, dimensions with specific accompanying diagrams).
5. Ordered Mrs. Bùi Thị P(also known as Bùi Thị Hương P) to pay Mr. Lê Ngọc T2 and Mrs. Doãn Thị V the value of constructions on the assigned land amounting to VND 47,068,000.
6. Ordered Mr. Lê Ngọc T2 and Mrs. Doãn Thị V to pay Mrs. Bùi Thị P, Ms. Lê Thị Thanh X, and Mr. Lê Ngọc T1 the inheritance value from Mr. Lê Ngọc U and Mrs. Bùi Thị T’s estate in the amount of VND 199,319,000.

Furthermore, the court also ruled on court fees and responsibilities for delayed enforcement.

On October 25^th, 2017, Mr. Lê Ngọc T2 filed a petition for review under the cassation procedure regarding the aforementioned Appellate Civil Judgment.

In Decision No. 07/QĐKNGĐT-VC1-DS dated March 28^th, 2017, the Chief Prosecutor of the High People’s Procuracy in Hà Nội lodged an appeal against the Appellate Civil Judgment No. 25/2017/DS-PT dated September 28^th, 2017 of the Hưng Yên Provincial People’s Court, requesting the Judicial Committee of the Hà Nội High People’s Court to conduct a cassation trial in order to vacate the aforementioned Appellate Civil Judgment and the First-instance Civil Judgment No. 01/2015/DS-ST dated March 31^st, 2015 of the Phù Cừ District People’s Court, Hưng Yên Province, and remand the case file to the Phù Cừ District People’s Court, Hưng Yên Province for first-instance retrial in accordance with the law.

COURT’S OPINION:

[1] Based on the testimonies of all parties involved, it can be ascertained that the land parcel identified as Parcel No. 31, with an actual land area of 990.2m², situated on Sheet No. 269 in Village Đ, Commune Đ1, P District, Hưng Yên Province, was originally allocated to Mr. Lê Ngọc U by the Commune Đ1 People’s Committee in 1973. This parcel is currently under the management and use of Mr. Lê Ngọc T2 (Exhibits 181, 184), who has not yet been granted a certificate of land use rights.

[2] Mrs. P (the daughter-in-law of Mr. Lê Ngọc U) contends that following the allocation of the land to Mr. U, Mr. U and his wife, along with Mr. Lê Ngọc H (Mr. U’s son and Mrs. P’s husband), transported construction materials from Lạng Sơn to build a house and other structures on the land. Mr. U and his wife resided there for a brief period before relocating to Lạng Sơn to live with her family. They then permitted Mr. C1’s family (Mr. U’s younger brother) to temporarily utilize the house and land, subsequently allowing Mr. T2 (Mr. C1’s son) to reside there.

However, Mr. T2 and Mrs. S (Mr. C1’s wife) dispute the assertion that they borrowed Mr. U’s house and land. They claim that due to Mr. C1’s large family size and the fact that none of his children were married and thus ineligible for land allocation, they requested Mr. U to apply for land allocation on behalf of Mr. C1’s family. According to their account, Mr. C1 directly received the land and permitted Mr. T2 and his family to reside there. They support their claims with confirmations from individuals who received the land and constructed houses and other structures on Mr. T2’s land.

Based on the testimonies of witnesses and an inspection report comparing the bricks used in Mr. T2’s house with bricks Mrs. P brought back from Lạng Sơn, it is established that the house and other assets on the land were built by Mr. T2’s family.

[3] Concerning the disputed land area, neither Mrs. P nor Mr. T2 were able to provide legal documentation substantiating their lawful land use rights over the disputed parcel. However, based on the testimonies of the parties involved and the verification record obtained from the People’s Committee of Commune Đ1 (Exhibit 253), Mr. Tạ Quang H, a land administration officer of the Đ1 Cooperative from 1960 to 1978, confirmed that in 1973, Mr. Lê Ngọc U (Mr. Lê Ngọc C1’s elder brother) applied for and was granted communal land by the Commune Đ1 People’s Committee upon his return from working in Lạng Sơn. 

The verification record from the Commune Đ1 People’s Committee indicates that Mr. U was listed as the designated landholder of the disputed plot on both the 1981 Parcel Division Map and the 1982 Land Registry. Conversely, Mr. Lê Ngọc T2 is listed as the designated landholder on the 1998 Communal Land Map and the 1998 Land Registry (Exhibit 37).

According to the verification record from the Commune Đ1 People’s Committee, the land currently under the management and use of Mr. T2 originates from the 1973 allocation to Mr. U, with no available information regarding whether Mr. U applied for the land on his own behalf or on behalf of Mr. C1’s family. The commune lacks documentation pertaining to the transfer of land use rights.

However, in practice, Mr. U and Mr. H (Mr. U’s son) did not reside on this land, which has been under the continuous management and use of Mr. T2 since 1975, with Mr. T2 having paid the associated property taxes (Exhibit 253). Mr. Tạ Quang H, the individual who allocated the land to Mr. U, further corroborated that Mr. U did not utilize the land, and instead, it was utilized by Mr. T2. Subsequently, Mr. U applied for and received an additional land plot from the cooperative, as Mr. T2 was already occupying the previously allocated land. This second plot is currently utilized by Mr. B, Mr. T2’s younger brother (Exhibit 262).

[4] Despite Mr. U’s allocation of the land, he did not utilize it after the 1973 allocation, permitting Mr. T2 to manage and use the land continuously from 1975 onwards. Due to the marshy nature of the allocated land, Mr. C1’s family and Mr. T2 were required to engage in substantial efforts to fill and level the land, as well as construct and repeatedly repair the dwelling. Both Mr. U and Mr. H were aware of these activities but raised no objections.

Residents of Commune Đ1 and witnesses confirmed that Mr. U and Mr. H did not reside on the land nor construct a house there, but occasionally visited and stayed at Mr. C1’s house within the village. Following the deaths of Mr. U and his wife, Mr. H, the sole surviving son of Mr. U, confirmed in a written commitment that Mr. U could not return to live on the land, thereby transferring the land use rights to Mr. T2. The family expressly stated no objections regarding this land parcel.

Therefore, although the land was initially allocated to Mr. U, his lack of utilization and the subsequent continuous management and use by Mr. T2 from the time of allocation in 1974 until the present establish a de facto transfer of rights. During this period, Mr. T2 has established stable residence, registered for land use rights, and paid property taxes, thereby fulfilling the legal requirements for land use rights certification.

Mr. U’s name on the 299 Parcel Division Map and the 1982 Land Registry is therefore inaccurate and cannot serve as a basis for establishing Mr. U’s lawful owner of land use rights over this land parcel. The trial court and the appellate court erred in relying solely on Mr. U’s initial land allocation to determine ownership, leading to an erroneous acceptance of part of the plaintiff’s claims and an unjust crediting of Mr. T2.

[5] Additionally, this case involves claims for property, including houses, land, and compensation funds resulting from the State’s eminent domain action. Such claims fall under the category of cases where there is no statutory cap on legal costs. The appellate court’s determination of a fee cap for legal costs was therefore incorrect. Consequently, the appeal by the Chief Prosecutor of the Supreme People’s Procuracy in Hà Nội is justified. However, given the errors committed by the first-instance court, these can be rectified by the appellate court, obviating the need to vacate the first-instance judgment and restart the case at the trial level, thereby avoiding protracted litigation.

In light of the foregoing, pursuant to point a, Clause 1 of Article 337, Clause 3 of Article 343, and Clause 1 of Article 345 of the 2015 Civil Procedure Code;

IT IS DECIDED:

1. To vacate the entire Appellate Civil Judgment No. 25/2017/DS-PT dated September 28^th, 2017, of the People’s Court of Hưng Yên Province concerning the case “Dispute over immovable property and eminent domain compensation” in Hưng Yên Province, between the plaintiff Mrs. Bùi Thị P (also known as Bùi Thị Hương P), Mr. Lê Ngọc T1, Ms. Lê Thị Thanh X, and the defendant Mr. Lê Ngọc T2; and interested parties including 6 people, Mrs. Vũ Thị S, Mrs. Doãn Thị V, Mr. Lê Ngọc C2, Ms. Trần Thị N, Ms. Lê Thị D1, and Ms. Lê Thị D2.
2. To remand the case file to the People’s Court of Hưng Yên Province for appellate retrial in accordance with the law.

CONTENT OF THE CASE LAW:

“[4] Despite Mr. U’s allocation of the land, he did not utilize it after the 1973 allocation, permitting Mr. T2 to manage and use the land continuously from 1975 onwards. Due to the marshy nature of the allocated land, Mr. C1’s family and Mr. T2 were required to engage in substantial efforts to fill and level the land, as well as construct and repeatedly repair the dwelling. Both Mr. U and Mr. H were aware of these activities but raised no objections.

Residents of Commune Đ1 and witnesses confirmed that Mr. U and Mr. H did not reside on the land nor construct a house there, but occasionally visited and stayed at Mr. C1’s house within the village. Following the deaths of Mr. U and his wife, Mr. H, the sole surviving son of Mr. U, confirmed in a written commitment that Mr. U could not return to live on the land, thereby transferring the land use rights to Mr. T2. The family expressly stated no objections regarding this land parcel.

Therefore, although the land was initially allocated to Mr. U, his lack of utilization and the subsequent continuous management and use by Mr. T2 from the time of allocation in 1974 until the present establish a de facto transfer of rights. During this period, Mr. T2 has established stable residence, registered for land use rights, and paid property taxes, thereby fulfilling the legal requirements for land use rights certification.

Mr. U’s name on the 299 Parcel Division Map and the 1982 Land Registry is therefore inaccurate and cannot serve as a basis for establishing Mr. U’s lawful owner of land use rights over this land parcel. The trial court and the appellate court erred in relying solely on Mr. U’s initial land allocation to determine ownership, leading to an erroneous acceptance of part of the plaintiff’s claims and an unjust crediting of Mr. T2.”

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