CASE LAW NO. 35/2020/AL

On Vietnamese citizens transferring agricultural land to domestic residents before emigrating abroad

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. 65/2018/GĐT-DS dated August 6^th, 2018, of the High People’s Court in Đà Nẵng regarding the civil case of “Dispute over property under enforcement” in Đắk Lắk Province between the plaintiff, Mrs. Nguyễn Thị K, and the defendant, Mrs. Nguyễn Thị T; with interested parties including 09 people.

Location of the Case Law’s Content:

Paragraphs 4 and 5 of the “Court’s Opinion” section.

Summary of the Case Law:

– Case Background:

A Vietnamese citizen transferred agricultural land to another domestic resident for use before emigrating abroad. The domestic resident who received the land has been using it continuously and uninterrupted for a significant period. Additionally, this resident has been issued a land use rights certificate.

– Legal Resolution:

Given these facts, it is likely that the domestic resident who received and has been using the land has established lawful land use rights. Due to the extended period of uninterrupted use and the issuance of a land use rights certificate, a court must not accept a request from the original owner to reclaim the land use rights.

Relevant Legal Provisions:

– Section 3, Part III, and Section 3, Part V of Decision No. 201-HĐCP/QĐ dated July 1^st, 1980, of the Government Council on the unification of land management and enhancement of land management across the country;

– Article 14 of the 1987 Land Law; Article 26 of the 1993 Land Law; Clauses 11 and 38, Article 50 of the 2003 Land Law (corresponding to Point h, Clause 1, Article 64; Article 100 of the 2013 Land Law).

Keywords:

“Vietnamese citizens emigrating abroad”; “Transferring agricultural land to domestic residents for use”; “Issued land use rightss certificate”; “Request to reclaim land use rightss”.

CASE DETAILS

In the lawsuit filed on May 9^th, 2012, and during the case proceedings, the plaintiff, Mrs. Nguyễn Thị K, presented the following facts:

In 1978, Mrs. Nguyễn Thị K and her husband, Mr. Nguyễn C, wrote a document giving Mr. Nguyễn Văn D (their son) 5 sào of land (1 sào equal 360m²), bounded by: East – Mr. L, West – Mrs. Nguyễn Thị E, South – the ethnic Thượng people, and North – National Highway 14. However, in 1982 and 1983, Mr. D sold all of it to Mr. Nguyễn Đăng N and Mr. Nguyễn Văn B.

Subsequently, Mrs. K gave Mr. D an additional 150m² of adjacent land without a written document, and in 2005, she gave him a house on the land (the house and land given to Mr. D were determined to be bounded by: East – Mr. B, West and South – the remaining family land, and North – National Highway 14).

In 2005, Mrs. K applied for a land use rights certificate, and on March 9^th, 2006, the People’s Committee of City P issued two land use rights certificates: Certificate No. AD 516166 for Plot No. 9, Map Sheet 58, with an area of 10,112.4m² for annual crop planting, valid until 2013, for Mrs. Nguyễn Thị K; Certificate No. AD 516165 for Plot No. 9A, Map Sheet 58, with an area of 300m² for urban residential use, for Mrs. Nguyễn Thị K and Mr. Nguyễn C.

In November 2006, Mrs. K applied for adjustments and reissuance of the land use rights certificate to match the actual situation of having built a house on the land. Thus, on November 24^th, 2006, the People’s Committee of City P issued Decision No. 762/QĐ-UBND to revoke Certificates No. AD 516165 and AD 516166 and reissued new Certificates No. AG 680769 and AG 680768 for Mrs. Nguyễn Thị K and Mr. Nguyễn C.

On June 19^th, 2009, the Chairman of the People’s Committee of City P issued Decision No. 1654/QĐ-UBND to revoke the land use rights certificates issued to Mrs. Nguyễn Thị K and Mr. Nguyễn C due to overlapping area and duplication of plot numbers with those already certified to Mr. Nguyễn Văn D.

Mrs. K filed an administrative lawsuit against the Chairman of the People’s Committee of City P regarding the issuance of Decision No. 1654/QĐ-UBND, revoking the land use rights certificates issued to her and her husband. The First-instance Administrative Judgment No. 02/2010/HC-ST dated June 11^th, 2010, of the People’s Court of Buôn Ma Thuột City, did not accept Mrs. K’s claims; the Appellate Administrative Judgment No. 07/2010/HC-PT dated September 17^th, 2010, of the People’s Court of Đắk Lắk Province amended the First-instance Judgment, accepting Mrs. K’s claims.

The Appellate Administrative Judgment was protested by the Chief Prosecutor of the Supreme People’s Procuracy, and in Cassation Decision No. 10/2011/HC-GĐT dated November 15^th, 2011, the Administrative Court of the Supreme People’s Court vacated the First-instance Administrative Judgment No. 02/2010/HC-ST dated June 11^th, 2010, of the People’s Court of Buôn Ma Thuột City, and vacated the Appellate Administrative Judgment No. 07/2010/HC-PT dated September 17^th, 2010, of the People’s Court of Đắk Lắk Province, remanding the case to the People’s Court of Buôn Ma Thuột City for first-instance re-trial.

After re-accepting the case, the People’s Court of Buôn Ma Thuột City duly summoned Mrs. K twice, but she was absent, leading the court to suspend the case.

In this civil lawsuit, Mrs. Nguyễn Thị K requests that Mr. D and his wife return the land, asserting that in 2005, Mr. D used a photocopy of the 1978 land transfer document, altering the plot’s location, and used this copy to apply for a land use rights certificate. Mr. D also filed a report claiming the original documents were lost, which was certified by the People’s Committee of Ward E.

Based on these documents submitted by Mr. D, the People’s Committee of City P issued a land use rights certificate to Mr. D for an area of 4,925.5m² (land use rights Certificate No. AD 579302 for Plot No. 9A, Map Sheet 58, with an area of 300.5m² and land use rights Certificate No. AD 579313 for Plot No. 09, Map Sheet 58, with an area of 4,624m²).

Mrs. K now demands that Mr. D and his wife return 4,652.7m² of land (excluding 272.8m² of land reclaimed by the People’s Committee of City P under Decision No. 4233/QĐ-UBND dated December 24^th, 2010); she agrees to allow Mr. D and his wife to continue using 183.74m² of land (including 150m² previously given and an additional 33.74m² because they built a house on this land); and she requests the court to annul the land use rights certificates issued by the People’s Committee of City P to Mr. D and Mrs. T.

– Previously, Mr. Nguyễn Văn D (now deceased) and Mrs. Nguyễn Thị T stated: In 1978, Mr. C and Mrs. K wrote a document giving them 5 sào of land, bounded by: East – Mr. L, West – Mrs. Nguyễn Thị E, South – the ethnic Thượng people, and North – National Highway 14. However, in 1982, Mrs. K sold 1 sào of land to Mr. N, and in 1985 Mr. C sold 4 sào of land to Mr. B, exhausting the 5 sào given in 1978. Consequently, the parents agreed to exchange and give Mr. D and Mrs. T an adjacent 5 sào of land; thereafter, the parents emigrated to the Federal Republic of Germany.

Before emigrating to Germany, Mrs. K entrusted all house and land documents to Mrs. Nguyễn Thị E. In 2004, Mrs. K returned to Vietnam. In 2005, Mr. D and Mrs. T approached Mrs. E to retrieve the house and land documents, but Mrs. E only handed over photocopies. The original documents, stamped and certified by the authorities, were still held by Mrs. K. Mr. D and Mrs. T used the photocopies given by Mrs. E, made additional copies, and along with two land allocation decisions from 1980 and 1990 by the People’s Committee of P Town, inquired at the People’s Committee of Ward E about procedures to apply for a land use rights certificate.

They were instructed to obtain signatures from Mrs. K and other family members affirming the 1978 gift of the 150m² house and 3.5 sào of fruit plantation land as per the original land document. Mr. D relayed this to Mrs. K (by then Mr. C had passed away), and Mrs. K signed a confirmation document stating that in 1978, the house and several sào of fruit plantation land were given to Mr. D and Mrs. T; the confirmation also bore the signatures of Mr. Nguyễn Văn Đ (now deceased) and Mrs. Nguyễn Thị E.

Based on this confirmation, on December 26^th, 2005, the People’s Committee of City P issued land use rights Certificate No. AD 579302 for Plot No. 9A, Map Sheet 58, with an area of 300.5m² of residential land, and land use rights Certificate No. AD 579313 for Plot No. 09, Map Sheet 58, with an area of 4,624.9m² of agricultural land.

However, on March 9^th, 2006, the People’s Committee of City P also issued land use rights Certificate No. AD 516166 for Plot No. 9, Map Sheet 58, with an area of 10,112.4m² for annual crop cultivation to Mrs. K, and land use rights Certificate No. AD 516165 for Plot No. 9A, Map Sheet 58, with an area of 300m² for urban residential use to Mrs. K and Mr. C, overlapping the area already certified to Mr. D and Mrs. T. Upon discovering this error, on November 24^th, 2006, the People’s Committee of City P issued Decision No. 762/QĐ-UBND to revoke the land use rights certificates issued to Mr. C and Mrs. K.

Mr. D and Mrs. T do not accept Mrs. K’s claims and state that they had mortgaged the two plots of land to Bank A for a loan of VND 3,000,000,000. Due to their inability to repay the loan, the bank filed a lawsuit, which the court resolved, and the enforcement agency auctioned the property to execute the judgment. They request the court to resolve the matter according to legal regulations.

The representative of the People’s Committee of City P asserted that the procedures for issuing the land use rights certificates to Mr. D and Mrs. T complied with legal regulations.

The representative of Bank A stated that the mortgage loan contract signed with Mr. D and Mrs. T was in good faith and was duly registered as a secured transaction per legal requirements.

– In the First-instance Civil Judgment No. 124/2013/DS-ST dated September 6^th, 2013, the People’s Court of Buôn Ma Thuột City, Đắk Lắk Province, dismissed all the plaintiff’s claims.

– In the Appellate Civil Judgment No. 07/2014/DSPT dated January 14, 2014, the People’s Court of Đắk Lắk Province overturned the First-instance Judgment, accepting all of the plaintiff’s claims; ordering Mr. D and Mrs. T to return the land to Mrs. K (excluding the 183.74m² that Mrs. K voluntarily gave and on which Mr. D had built a house), and annulled the two land use rights certificates issued by the People’s Committee of City P to Mr. D and Mrs. T.

Mr. D and his wife, Bank A, and Mr. H (the successful bidder in the land auction as per Decision No. 47/2011/QĐST-KDTM dated June 17^th, 2011, of the People’s Court of Đắk Lắk Province, resolving the dispute over the credit contract and the mortgage of land use rights between the Bank and Mr. D and his wife) submitted a request for a cassation review.

– In Decision No. 343/2014/KN-DS dated September 16^th, 2014, the Chief Justice of the Supreme People’s Court filed a protest under cassation procedures against Appellate Civil Judgment No. 07/2014/DSPT dated January 14^th, 2014, of the People’s Court of Đắk Lắk Province, proposing to vacate the Appellate and First-instance Judgments and remand the case file to the first-instance court for re-trial. In Cassation Decision No. 461/2014/DS-GĐT dated November 24^th, 2014, the Civil Division of the Supreme People’s Court vacated the First-instance and Appellate Judgments, remanding the case to the People’s Court of Buôn Ma Thuột City for first-instance re-trial with the following observations (summarized):

  + During their lifetime, Mr. C and Mrs. K utilized 29,418.27m² of land; in 1983, they emigrated to Germany, leaving the land to their children, with Mr. D and his wife being assigned a portion. In late 2005, Mr. D and his wife were issued a land use rights certificate for 4,924m² (comprising 300.5m² of residential land and 4,624.9m² of agricultural land). In 2004, Mrs. K returned to Vietnam; in 2006, Mrs. K was issued a land use rights certificate for the entire area that included the already granted land to Mr. D and his wife.

Upon discovery, the authorities revoked the land use rights certificate issued to Mrs. K, affirming the legality of the certificate issued to Mr. D and his wife in 2005. Although the disputed land originated from Mrs. K and Mr. C, they emigrated, leaving it to Mr. D and his wife in 1983, and Mr. D and his wife were issued a land use rights certificate in 2005. If the 4,624.9m² of agricultural land was not assigned, it would have been reclaimed by the State. Regarding the 300.5m² of residential land, Mrs. K agreed to give Mr. D 150m², with the remainder being Mr. C’s estate, and thus, Mrs. K had no right to reclaim it.

  + Moreover, in 2009, Mr. D and his wife mortgaged the land for a loan from the Bank; upon default, the Bank filed a lawsuit, which the court resolved, and the enforcement agency auctioned the property to execute the judgment. Therefore, the appellate court’s order for Mr. D and his wife to return the entire land (except for 180m² where Mr. D built a house) was incorrect and did not ensure the legal rights and interests of the Bank and Mr. H (the auction winner).

– In First-instance Civil Judgment No. 98/2014/DS-ST dated January 14^th, 2014, the People’s Court of Buôn Ma Thuột City dismissed all of the plaintiff’s claims.

– In Appellate Civil Judgment No. 06/2016/DS-PT dated January 11^th, 2016, the People’s Court of Đắk Lắk Province upheld the First-instance Judgment.

Following the Appellate Judgment, Mrs. Nguyễn Thị K submitted a request for cassation review against Appellate Civil Judgment No. 06/2016/DS-PT dated January 11^th, 2016, of the People’s Court of Đắk Lắk Province.

– In Cassation Protest No. 11/2017/KN-DS-VC2 dated February 7^th, 2017, the Chief Prosecutor of the High People’s Procuracy in Đà Nẵng proposed that the Judicial Committee of the High People’s Court in Đà Nẵng vacate First-instance Civil Judgment No. 98/2014/DS-ST dated January 14^th, 2014, of the People’s Court of Buôn Ma Thuột City and Appellate Civil Judgment No. 06/2016/DS-PT dated January 11^th, 2016, of the People’s Court of Đắk Lắk Province for first-instance re-trial because:

  + During the process of declaring and applying for the land use rights certificate, Mr. Nguyễn Văn D used a photocopy and forged the house and land transfer document dated January 2^nd, 1978 (altering the boundaries), and supplemented it with a confirmation from Mr. Nguyễn Văn S, Chairman of the Farmers’ Union and Chairman of the People’s Committee of Ward E dated November 25^th, 1983 (more than five years after the land transfer), which was illegal.

The People’s Committee of City P issued land use rights Certificate No. AD 579302 for Plot 9A, Map Sheet 58, with an area of 300.5m², and land use rights Certificate No. AD 579313 for Plot 09, Map Sheet 58, with an area of 4,624.9m² on December 26^th, 2005, to Mr. Nguyễn Văn D’s household unlawfully. Moreover, Mr. Nguyễn Văn S confirmed the house and land transfer document dated January 2^nd, 1978, on November 25^th, 1983, but the first-instance and appellate courts did not verify or take statements from these individuals, thus failing to comprehensively clarify the case.

  + The defendants contended that back in 1982, Mrs. Nguyễn Thị K sold 1 sào of the land that was originally granted by Mr. C and Mrs. K to the defendants, to Mr. Nguyễn Đăng N. Subsequently, the remaining 4 sào were sold by Mr. C to Mr. Nguyễn Văn B in 1985. Following the land transactions, Mr. C and Mrs. K gifted Mr. D and his wife an adjacent 5 sào of land. In relation to the land granted in 1978 by Mr. C and Mrs. K to the defendants, it was noted that Mr. C and Mrs. K were unaware of the boundaries, hence they deliberately left it unspecified.

Post-sale, Mr. C and Mrs. K provided the 5 sào of land adjacent to the sold land, prompting the defendants to indicate that this land was adjacent to Mr. B’s land, their residence, and subsequently sought confirmation from the State-owned Cinema Company under the Department of Culture of Đắk Lắk Province and Farmer Cooperative E.

However, according to the land sale documents, Mr. D was the one directly made the sale to Mr. N and Mr. B. The land transfer documents provided by Mrs. K (original) and the defendants (photocopy) both showed the land boundaries, but the photocopy had altered boundaries, not left blank. Mrs. T’s claim that Mr. C and Mrs. K gave an additional 5 sào after selling the previous 5 sào is unfounded as no evidence supports this.

The defendant also asserted that on October 15^th, 2005, Mrs. K submitted a confirmation stating that in 1978, she had given Mrs. T and her husband a house and some land for fruit cultivation. Mrs. K and her siblings, including Nguyễn Văn Đ (who passed away in 2008) and Nguyễn Thị E, signed to confirm this using the photocopy of the house and land transfer document. However, upon examination, this confirmation only indicated that Mrs. K had given a house with an area of 100m² (5m x 20m) on a plot of 150m² (5m x 30m), without mentioning the transfer of any land for fruit cultivation to Mrs. T and her husband.

Mr. D and Mrs. T submitted an application for a land use rights certificate in 2005 for a plot of land different from the one given by Mrs. K and Mr. C on January 2nd, 1978. The passing of Mr. Nguyễn C in 1998 triggered inheritance rights for Mrs. K and Mr. C’s 14 children. However, the first-instance and appellate courts failed to recognize these individuals as interested parties, which is a violation of Article 61 of the 2004 Civil Procedure Code (Article 73 of the 2015 Civil Procedure Code).

At the cassation hearing, the representative of the High People’s Procuracy in Đà Nẵng proposed that the Judicial Committee of the High People’s Court in Đà Nẵng accept the protest from the Chief Prosecutor of the High People’s Procuracy in Đà Nẵng.

COURT’S OPINION:

[1] Regarding whether Mrs. K and her husband are entitled to reclaim the 4,924m² of land for which Mr. D and Mrs. T received a land use rights certificate from the People’s Committee of City P on December 26^th, 2005, the Judicial Committee of the High People’s Court in Đà Nẵng made the following observations:

[2] Mr. Nguyễn C and Mrs. Nguyễn Thị K had 14 children, including Mr. Nguyễn Văn D. The disputed 4,924m² of land (comprising 300.5m² of residential land and 4,624.9m² of agricultural land) is part of the total 29,418.27m² that Mr. C and Mrs. K acquired during their lifetime (before 1975, this land was in Commune C, after 1975 in Commune H, in 1983 in Commune E, and now in Ward E, City P, Đắk Lắk Province). On October 2^nd, 1978, Mr. C and Mrs. K transferred a house (4m x 12m) on 5 sào of land to their son, Mr. Nguyễn Văn D, with boundaries east of Mr. L’s land, west of Mrs. Nguyễn Thị E’s land, south of ethnic minority (Thượng people) land, and north of National Highway 14. Shorten with AI

However, in 1982 and 1983, Mr. Nguyễn Đăng N and Mr. Nguyễn Văn B bought these 5 sào of land. Mrs. K claimed that Mr. D transferred this land to Mr. N and Mr. B, while Mr. D denied this, stating that Mr. C and Mrs. K transferred it. The cassation court found Mr. D’s statement consistent with Mr. N and Mr. B’s testimony that they purchased the land from Mr. C and Mrs. K and paid them (Exhibit 231, 230, 229), aligning with the fact that Mr. C and Mrs. K only signed a handwritten transfer document for Mr. D in 1978, meaning they legally retained ownership.

[3] After the transfer of the 5 sào of land in 1978, Mr. C and Mrs. K relocated to the Federal Republic of Germany around 1983. Mr. D and Mrs. T took care of the remaining land and house. The cassation panel deemed Mr. D and Mrs. T’s assertion credible that prior to their emigration, Mr. C and Mrs. K gifted them 5 sào of land next to the previously transferred plot, as compensation for the 5 sào sold to Mr. N and Mr. B.

This aligns with Mr. N and Mr. B’s account of purchasing and paying for the land from Mr. C and Mrs. K, as well as with a confirmation letter from Mrs. K dated October 15th, 2005 (signed by her children, Mr. Nguyễn Văn Đ, Mrs. Nguyễn Thị E, a neighbor witness Mr. Nguyễn Văn H1, and certified by local authorities). The letter affirmed that in 1978, Mr. C and Mrs. K gifted Mr. D land and a house, but the original documents were lost, prompting Mrs. K to sign the letter to facilitate Mr. D’s land use and housing registration in accordance with legal requirements.

[4] Additionally, of the 4,924m² of land for which Mr. D and Mrs. T received a land use rights certificate from the People’s Committee of City P on December 26, 2005, only 300.5m² is residential land (land use rights Certificate No. AD 579302, Plot 9A, Map Sheet 58). The remaining 4,624.9m², Plot 09, Map Sheet 58, is agricultural land (land use rights Certificate No. AD 579313).

According to Clause 5, Article 14 of the 1987 Land Law, Clause 3, Article 26 of the 1993 Land Law, the State will reclaim land if it is not used for over six months or 12 months without State permission. Per Clause 11, Article 38 of the 2003 Land Law and Point h, Clause 1, Article 64 of the 2013 Land Law, certain violations of land use regulations will result in State reclamation, such as: “Annual crop land not used for 12 consecutive months, perennial crop land not used for 18 consecutive months; forest land not used for 24 consecutive months;…”.

The cassation panel found that although Mr. C and Mrs. K previously used the 4,624.9m² of agricultural land, they emigrated and did not use the land for many years, subjecting it to State reclamation. Mr. D and his wife directly used it, annually declared and paid taxes, and were granted a land use rights certificate in 2005, thus holding legitimate use rights over this land.

[5] Based on the aforementioned arguments, the cassation court finds sufficient grounds to determine that Mr. C and Mrs. K, before emigrating to the Federal Republic of Germany, had given Mr. D and Mrs. T the 5 sào of land. This land, for which Mr. D now has a land use rights certificate, was given to compensate for the 5 sào initially given to Mr. D in 1978 but sold to Mr. N and Mr. B in 1982 and 1983. Additionally, Mr. C and Mrs. K did not use the land for many years, making it subject to State reclamation.

In contrast, Mr. D and Mrs. T used the land, declared it for tax purposes annually, and were granted a land use rights certificate. Therefore, Mr. D and Mrs. T have legitimate rights to use this land. Consequently, the First-instance Civil Judgment No. 98/2014/DS-ST dated January 14^th, 2014, of the People’s Court of Buôn Ma Thuột City, and the Appellate Civil Judgment No. 06/2016/DS-PT dated January 11^th, 2016, of the People’s Court of Đắk Lắk Province, which did not accept Mrs. K’s lawsuit demanding that Mr. D and Mrs. T’s family return the land, were valid and lawful.

[6] After receiving the land use rights certificates on December 26^th, 2005 (land use rights Certificate No. AD 579302 for Plot 9A, Map Sheet 58, with 300.5m² of residential land, and land use rights Certificate No. AD 579313 for Plot 09, Map Sheet 58, with 4,624.9m² of agricultural land), in 2009, Mr. D and Mrs. T mortgaged the land at Bank A for a loan.

Due to their failure to repay the loan on time, the bank filed a lawsuit. The People’s Court of Đắk Lắk Province resolved the matter in Decision No. 47/2011/QĐST-KDTM dated June 17^th, 2011, ordering Mr. D and Mrs. T to repay the loan to the bank. If they failed to repay, the bank had the right to auction the two mortgaged plots. Subsequently, these plots were auctioned and sold to Mr. H, making him a bona fide third party with legitimate rights to use the two plots per Articles 138 and 258 of the 2005 Civil Code, unrelated to the dispute between Mrs. K and Mr. D’s family.

[7] From the above analysis, the Judicial Committee of the High People’s Court in Đà Nẵng found that the Cassation Protest No. 11/2017/KN-DS-VC2 dated February 7^th, 2017, from the Chief Prosecutor of the High People’s Procuracy in Đà Nẵng against the Appellate Civil Judgment No. 06/2016/DS-PT dated January 11^th, 2016, of the People’s Court of Đắk Lắk Province, lacked merit. Therefore, it was not accepted, and the decision in the Appellate Civil Judgment No. 06/2016/DS-PT dated January 11^th, 2016, of the People’s Court of Đắk Lắk Province remains upheld.

In light of the foregoing,

IT IS DECIDED:

Pursuant to Point b, Clause 1, Article 337, and Clause 1, Article 343 of the 2015 Civil Procedure Code:

1. The Cassation Protest No. 11/2017/KN-DS-VC2 dated February 7^th, 2017, from the Chief Prosecutor of the High People’s Procuracy in Đà Nẵngis not accepted. The Appellate Civil JudgmentNo. 06/2016/DS-PT dated January 11^th, 2016, of the People’s Court of Đắk Lắk Province is upheld.
2. The Appellate Civil JudgmentNo. 06/2016/DS-PT dated January 11^th, 2016, of the People’s Court of Đắk LắkProvince remains legally effective.

This cassation decision is now legally enforceable.

CONTENT OF THE CASE LAW:

“[4] Additionally, of the 4,924m² of land for which Mr. D and Mrs. T received a land use rights certificate from the People’s Committee of City P on December 26, 2005, only 300.5m² is residential land (land use rights Certificate No. AD 579302, Plot 9A, Map Sheet 58). The remaining 4,624.9m², Plot 09, Map Sheet 58, is agricultural land (land use rights Certificate No. AD 579313).

According to Clause 5, Article 14 of the 1987 Land Law, Clause 3, Article 26 of the 1993 Land Law, the State will reclaim land if it is not used for over six months or 12 months without State permission. Per Clause 11, Article 38 of the 2003 Land Law and Point h, Clause 1, Article 64 of the 2013 Land Law, certain violations of land use regulations will result in State reclamation, such as: “Annual crop land not used for 12 consecutive months, perennial crop land not used for 18 consecutive months; forest land not used for 24 consecutive months;…”.

The cassation panel found that although Mr. C and Mrs. K previously used the 4,624.9m² of agricultural land, they emigrated and did not use the land for many years, subjecting it to State reclamation. Mr. D and his wife directly used it, annually declared and paid taxes, and were granted a land use rights certificate in 2005, thus holding legitimate use rights over this land.

[5] … the First-instance Civil Judgment No. 98/2014/DS-ST dated January 14^th, 2014, of the People’s Court of Buôn Ma Thuột City, and the Appellate Civil Judgment No. 06/2016/DS-PT dated January 11^th, 2016, of the People’s Court of Đắk Lắk Province, which did not accept Mrs. K’s lawsuit demanding that Mr. D and Mrs. T’s family return the land, were valid and lawful.”

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