CASE LAW NO. 40/2021/AL On Recognizing the Practical Conversion of Land Use Rights (Please note that this image is not related to the specific case being discussed).

CASE LAW NO. 40/2021/AL

On Recognizing the Practical Conversion of Land Use Rights

Approved by the Judicial Council of the Supreme People’s Court on February 23^rd, 2021, and published under Decision No. 42/QĐ-CA dated March 12^th, 2021, by the Chief Justice of the Supreme People’s Court.

Source of the Case Law:

The Cassation Decision No. 37/2019/DS-GĐT dated June 28^th, 2019, by the Judicial Committee of the High People’s Court in Hà Nội regarding the civil case “Inheritance Dispute” in Thanh Hóa 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; with interested parties being the People’s Committee of B Town and Mrs. Lại Thị H.

Location of the Case Law’s Content:

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

Summary of the Case Law:

– Case Background:

The parties involved practically converted land use rights without a written agreement; the parties have used the land continuously, without interruption for an extended period, and have registered, declared, and received certificates of land use rights for the converted land.

– Legal Resolution:

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

Relevant Legal Provisions:

– 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:

“Practical Conversion of Land Use Rights”; “Land Used Continuously, Without Interruption for An Extended Period”; “Issuance of Land Use Rights Certificate”; “Recognition of Practical Conversion of Land Use Rights “.

CASE DETAILS

According to the complaint dated February 18^th, 2014, and during the case proceedings, the plaintiffs, Mr. Lê Văn C1, Mr. Lê Văn C2, and Mrs. Lê Thị M, stated the following:

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

In 1963, Mr. U and Mrs. K relocated from Q Commune, H District to reclaim land in the new economic zone in L Village (now in Hamlet 5, T Commune, B Town, Thanh Hóa Province), bringing along their four children: Mr. D2, Mr. C1, Mr. C2, and Mrs. M. Prior to their departure, they disassembled their kitchen to transport it with them and left their 5-room house in Q Commune for Mr. T1 and Mr. D1.

They reclaimed and developed Plot No. 986 in Hamlet 5, T Commune, and constructed a 5-room residence for their cohabitation. Mr. D2 joined the military and martyred in 1972 without being married or having any children. Mr. C1 and Mr. C2 also joined the military. In 1989, Mr. C1 retired, and in 1992, Mr. C2 retired.

Mr. T1 married Mrs. Lê Thị C3, and Mr. D1 married Mrs. Nguyễn Thị T2. During their time living in Q Commune, Mrs. C3 and Mrs. T2 had developed conflicts between them, so in 1983, Mrs. T2 moved to live with Mr. U, Mrs. K, and Mrs. M in S Town.

In 1997, Mr. U passed away intestate. On October 14th, 2003, Mrs. K arranged a family meeting with Mr. C1, Mr. C2, Mrs. M, Mr. T1, and Mr. D1 to address the disputes within the family regarding the ownership of Plot No. 986 in Hamlet 5, T Commune.

Mr. D1 recorded the meeting with the purpose of allocating the land use rights. The family recognized the land’s origin from Mr. U and Mrs. K and established its boundaries, but they were unable to reach a consensus on how to divide it. More precisely, Mrs. K, Mr. C1, Mr. C2, and Mrs. M declined to accept the proposed 10-meter frontage from Mr. D1.

In 2006, Mrs. K also passed away intestate. The family discussed the inheritance of the parents’ property but could not reach an agreement. Consequently, Mr. C1, Mr. C2, and Mrs. M sought mediation by the Village authority on August 22^nd, 2008. On October 10^th, 2010, Mr. D1 admitted to living on the disputed land since 1984.

Mr. C1, Mr. C2, and Mrs. M filed a lawsuit requesting the court to: annul the land use rights certificate No. C364176 under Mrs. T2’s family name for the land in Hamlet 5, T Commune; reserve 116m² of Plot No. 986 for building a shrine for their parents and divide the remaining land among the siblings. They did not demand the return or inheritance division of structures on the land or the nearly 20m of frontage Mr. D1 sold during the parents’ lifetime.

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

The land claimed by the plaintiffs for inheritance was not left by the parents. Instead, Mr. D1 and Mrs. T2 exchanged 2,112m² of land from Plot No. 288, Map Sheet 299, in T Commune’s cadastral map, granted by the Commune in 1982, for Plot No. 986 (renumbered to Plot No. 40 in the 1997 map), and thus, the exchanged land no longer belonged to the parents. They currently hold a land use rights certificate for this land.

They requested the competent authority to revoke Plot No. 288, with the parents as the land users. Mr. C1’s transfer of Plot No. 288 to Mr. Trịnh Văn T3 was deemed illegal as it lacked family consensus, including Mr. D1’s agreement. Plot No. 288, for which the parents were granted a land use rights certificate in 1994, is the land left for inheritance.

The mediation records submitted by the plaintiffs along with their petition are deemed biased and unlawful, as the defendants’ family has held the land use rights certificate since 1994, a period exceeding 20 years without any disputes.

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

– To annul a part of Decision No. 71QĐ/UBBS dated September 23^rd, 1994, by the People’s Committee of B Town regarding the allocation of stable, long-term farmland and the issuance of a land use rights certificate to Mrs. Nguyễn Thị T2’s household. The People’s Committee of B Town is obligated to revoke the Land Use Rights Certificate No. C36476 under Mrs. Nguyễn Thị T2’s household and reissue the certificate in accordance with the law.

– To allocate to Mr. Lê Văn C1, Mr. Lê Văn C2, and Mrs. Lê Thị M an inheritance from Mrs. Nguyễn Thị K’s estate comprising 538m² of land in Hamlet 5, T Commune, B Town. Specifically, each person is granted the use rights to 179.33m² of land valued at VND 137,708,000.

– To temporarily allocate the portion of Mr. Lê Văn U’s estate, which is ½ of Plot No. 986 with an area of 538m², to Mr. D1 for continued management and utilization until a decision is rendered by a competent state authority.

Additionally, the First-instance Court made other decisions regarding court fees and the right to appeal.

On June 8^th, 2016, Mr. D1 and Mrs. T2 appealed the entire First-instance Judgment.

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

– To dismiss the appeals of Mr. Lê Văn D1 and Mrs. Nguyễn Thị T2.

– To uphold the First-instance Judgment No. 04/2016/DSST dated May 27^th, 2014, by the People’s Court of Bỉm Sơn Town.

On December 30^th, 2016, N Limited Liability Law Firm (representing Mr. D1) and Mr. D1, Mrs. T2 filed a request for a review of the Appellate Judgment under cassation procedures.

In the Appeal Decision No. 06/2019/KN-DS dated February 14^th, 2019, the Chief Justice of the High People’s Court in Hà Nội requested the Judicial Committee of the High People’s Court in Hà Nội to conduct a cassation trial in order to vacate the aforementioned Appellate Civil Judgment and the First-instance Civil Judgment No. 04/2016/DSST dated May 27^th, 2016, by the People’s Court of Bỉm Sơn Town, Thanh Hóa Province, and to remand the case file to the People’s Court of Bỉm Sơn Town, Thanh Hóa Province for first-instance trial in accordance with the law.

At the cassation hearing, the representative of the People’s Procuracy of the High People’s Procuracy in Hà Nội proposed that the Judicial Committee of the High People’s Court in Hà Nội accept the appeal of the Chief Justice of the High People’s Court in Hà Nội.

COURT’S OPINION:

[1] Mr. Lê Văn U and Mrs. Nguyễn Thị K had three children together: Mr. Lê Văn C1, Mr. Lê Văn C2, and Mrs. Lê Thị M. Mr. U also had three children from his previous (deceased) wife: Mr. Lê Quang T1, Mr. Lê Văn D1, and Mr. Lê Quang D2 (who martyred in 1972 without being married or having any children). Mr. U died in 1997 and Mrs. K died in 2006, both without leaving a will.

On February 18^th, 2014, Mr. C1, Mr. C2, and Mrs. M filed a lawsuit requesting the court to annul the Land Use Rights Certificate No. C364176 dated September 23^rd, 1994, under Mrs. T2’s household for the land in Hamlet 5, T Commune, B Town, Thanh Hóa Province, and to divide the estate which is the Plot No. 986, Map Sheet No. 1, T Commune cadastral map, B Town, Thanh Hóa Province, currently managed and utilized by Mr. D1 and Mrs. T2.

[2] During the case proceedings, the parties agreed that the disputed land originated from Mr. U and Mrs. K’s reclamation efforts. Mr. D1 and Mrs. T2 claimed that in 1982, they moved from H District to B Town to live with Mr. U, Mrs. K, and Mrs. M on the disputed land. In 1984, they were allocated a plot by the People’s Committee of T Commune at the oil depot area (Chỏm Vang) and exchanged it with Mr. U and Mrs. K for Plot No. 986 (renumbered to Plot No. 40 in the 1997 cadastral map).

They received a land use rights certificate for this plot, so the disputed land is not Mr. U and Mrs. K’s estate but their private property. Mrs. M and Mr. C1 agreed that in 1984 (when Mr. C1 and Mr. C2 were still serving in the military and Mr. C1’s wife was teaching in another locality, preventing him from applying for land), Mrs. M applied for land on behalf of Mr. D1 at Mr. U’s request.

They were allocated a plot at Chỏm Vang by the People’s Committee of T Commune. Since Mr. D1 and Mrs. T2 refused to move to the new Plot, to avoid family conflicts, Mr. C1 built a house on the newly allocated plot and moved Mr. U, Mrs. K, and Mrs. M there. Thus, although the new plot was registered under Mr. U’s household, it belonged to Mr. C1.

[3] According to Dispatch No. 910/UBND-TNMT dated July 28^th, 2014, from the People’s Committee of Bỉm Sơn Town:

[4] According to the 299 map approved in 1985, the disputed land is Plot No. 986, measuring 1,616m² of “T” land without a recorded land user. According to the December 1997 cadastral map, the disputed land is Plot No. 40, Map Sheet No. 17, measuring 1,263m², with 200m² of residential land and 1,063m² of garden land, registered under Mr. D1. According to the December 2011 cadastral map of T Commune, the disputed land is Plot No. 262, Map Sheet No. 56, measuring 1,571m², with 120m² of residential land and 1,451.4m² of perennial crop land, registered under Mr. D1.

[5] Based on Decision No. 201QĐ/ĐKTK dated July 14^th, 1989, by the General Department of Land Management, which issued regulations on the issuance of land use rights certificates, and Decision No. 117/NN/UBTH dated January 21^st, 1993, by the People’s Committee of Thanh Hóa Province, which stipulated the allocation of stable, long-term farmland to farmer households;

Proposal No. 73/TT/UB dated August 20^th, 1994, by the People’s Committee of T Commune, and the accompanying plan for approving the issuance of land use rights certificates, the People’s Committee of B Town issued Decision No. 71/QĐ/UBBS dated September 23^rd, 1994, to allocate stable, long-term farmland and issue land use rights certificates to 716 farmer households belonging to Cooperative X, T Commune, including Mrs. T2’s household.

Mrs. T2’s household received a land use rights certificate on September 23^rd, 1994, for a total area of 3,409m², comprising 200m² of residential land, 786m² of farmland in Plot No. 986a, with the remainder being agricultural production land.

[6] According to Proposal No. 73/TT/UB dated August 20^th, 1994, by the People’s Committee of T Commune: The People’s Committee of T Commune submitted to the Chairman of the People’s Committee of B Town for approval the allocation of stable, long-term farmland and the issuance of land use rights certificates to 716 farmer households in the Commune. The proposal, the records and land use registration applications, all were publicly announced.

[7] In Decision No. 71/QĐ/UBBS dated September 23^rd, 1994, the People’s Committee of B Town decided to allocate stable, long-term farmland to 716 farmer households belonging to Cooperative X, 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 farmland, all in Plot No. 986a, with the remainder being paddy fields in various plots, and Mrs. T2’s household was issued a land use rights 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 farmland, all in Plot No. 325 (claimed by the parties to be Plot No. 288), with the remainder being paddy fields in various plots.

[8] Hence, the documents in the case file demonstrate that the distribution of land to farmer households in T Commune was carried out in accordance with government policies and well-documented for public record. When the People’s Committee of T Commune and the People’s Committee of B Town implemented the land allocation policy, they gave land use rights certificates to 716 farmer households in T Commune, including the households of Mr. U and Mrs. T2.

At that time, Mr. U and Mrs. K were still alive and did not submit any applications or statements regarding the disputed plot. They only declared Plot No. 325, which Mr. D1 and Mrs. T2 claimed was the plot exchanged for them. As a result, they were given a land use rights certificate for this plot. Mrs. T2’s household received a land use rights certificate for Plot No. 986a, which is the plot in question.

Furthermore, following the issuance of the land use rights certificate for the contested plot to Mrs. T2’s household, no complaints were made. It was not until 2008, after the deaths of Mr. U and Mrs. K, that a dispute emerged among their children. Therefore, it can be inferred that Mr. U and Mrs. K swapped the land with Mrs. T2 and Mr. D1, based on ample evidence.

[9] The first-instance court concluded that according to the 1985 299 map, Mrs. K and Mr. U were the users of the disputed land, thereby considering the disputed land as part of Mr. U and Mrs. K’s estate and therefore, ruled to divide Mrs. K’s estate among her children. Such ruling was incorrect.

[10] After the first-instance trial, Mr. D1 and Mrs. T2 appealed the entire First-instance Judgment. The appellate court concluded that Plot No. 325, registered under Mr. U’s household, was the private property of Mr. C1 and his wife, whereas Plot No. 986, registered under Mrs. T2’s household, was part of Mr. U and Mrs. K’s estate. Consequently, the appellate court rejected the appeals of Mr. D1 and Mrs. T2 and upheld the first-instance court’s decisions, causing significant harm to the lawful rights and interests of Mr. D1 and Mrs. T2.

[11] Regarding procedural matters: In resolving the case, the first-instance and appellate courts did not include Mr. T1 and the two children of Mr. D1 and Mrs. T2 as the interested party, which was an oversight on their part.

In light of the foregoing,

IT IS DECIDED:

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

To accept the appeal of the Chief Justice of the High People’s Court in Hà Nội.

1. To vacate the Appellate Civil Judgment No. 85/2016/DSPT dated September 16^th, 2016, by the People’s Court of Thanh Hóa Province, and the First-instance Civil Judgment No. 04/2016/DSST dated May 27^th, 2016, by the People’s Court of Bỉm Sơn Town, Thanh Hóa Province, regarding the case of “Inheritance Dispute” 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 interested parties.
2. To remand the case file to the People’s Court of Bỉm Sơn Town, Thanh Hóa Province, for first-instance trial in accordance with the law.

CONTENT OF THE CASE LAW:

“[8] Hence, the documents in the case file demonstrate that the distribution of land to farmer households in T Commune was carried out in accordance with government policies and well-documented for public record. When the People’s Committee of T Commune and the People’s Committee of B Town implemented the land allocation policy, they gave land use rights certificates to 716 farmer households in T Commune, including the households of Mr. U and Mrs. T2.

At that time, Mr. U and Mrs. K were still alive and did not submit any applications or statements regarding the disputed plot. They only declared Plot No. 325, which Mr. D1 and Mrs. T2 claimed was the plot exchanged for them. As a result, they were given a land use rights certificate for this plot. Mrs. T2’s household received a land use rights certificate for Plot No. 986a, which is the plot in question.

Furthermore, following the issuance of the land use rights certificate for the contested plot to Mrs. T2’s household, no complaints were made. It was not until 2008, after the deaths of Mr. U and Mrs. K, that a dispute emerged among their children. Therefore, it can be inferred that Mr. U and Mrs. K swapped the land with Mrs. T2 and Mr. D1, based on ample evidence.

[9] The first-instance court concluded that according to the 1985 299 map, Mrs. K and Mr. U were the users of the disputed land, thereby considering the disputed land as part of Mr. U and Mrs. K’s estate and therefore, ruled to divide Mrs. K’s estate among her children. Such ruling was incorrect.”

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