Land is one of the common objects of dispute today. Among them are disputes regarding a person allocated land by the State and got the land managed and used stably and permanently by another, which is still taking place in many localities. During the process of using land, the person who is “asked” to manage or “borrow” the land has improved the land, built stable housing, and registered to declare land use rights without the person to whom the land was allocated by the State knowing nothing or having no opinion. Usually, these disputes originate from the time when the State was still in the stage of completing the law and implementing the policy of allocating land to people for settlement and stable living in the 1970s. Therefore, Case law No. 33/2020/AL was issued as an explanation and to apply to similar disputes that occur. In this article, TNTP’s lawyers will comment and clarify the content of this Case law No. 33/2020/AL.
1. Summary of the case
(a) Mr. Le Ngoc U and Ms. Bui Thi T were from Hamlet D, Ward D1, District P, Hung Yen Province. Mr. Le Ngoc H who was Ms. Bui Thi P’s husband was the only son of Mr. U and Ms. T. In 1973, Mr. U went back to his hometown to apply to the People’s Committee of Ward D1, District P, Hung Yen Province for a land with an area of 1,079 m2.
(b) In 1976, Mr. H went back to his hometown to build a house with 3 compartments, 01 attic, and the subconstruction included a kitchen, well, bathroom, and toilet on that land plot so that Mr. U and Ms. T who had been retired would stay. Mr. U and Ms. T stayed there for a while, then they moved into the village.
(c) In 1977, Mr. Le Ngoc C1, a younger brother of Mr. U, borrowed that house and land plot so that his son, Mr. Le Ngoc T2 could stay.
(d) On January 22, 1994, Ms. T died and so did Mr. U on December 20, 1995. They both died without a will. According to Ms. P, before Ms. T died, she had handled documents showing the commune’s allocation of land to Mr. U in Village D in 1973. However, in 2008, due to a historic flood in Lang Son, Ms. P’s house flooded, and all her personal documents were damaged.
(e) In 2008, Mr. Le Ngoc T2 met Mr. H and requested him to write a power of attorney so that Mr. T2 could receive compensation for the State’s land acquisition to construct Road 38B. In June 2009, Mr. H died without a testament but told Ms. P to return to her hometown to reclaim the house and land that had been borrowed by Mr. T2.
(f) Ms. P and her children are Mr. Le Ngoc T1 and Ms. Le Thi Thanh X requested Mr. T2’s family to return the whole house and land plot and the compensation of VND 398.638.000 for the State’s land acquisition in 2008.
(h) In the Civil First-instance Judgment No. 01/2015/DS-ST dated March 31st, 2015, the People’s Court of Phu Cu District decided:
• Mr. Le Ngoc T2 and Ms. V were assigned to manage and use according to actual measurement data on August 8, 2014, which is 990m2. The residential land was 816m2; the pond land was 174m2 (with attached diagram). Mr. Le Ngoc T2 and Ms. Doan Thi V were obliged to register the assigned land use right at the competent authority, under the land laws
• The houses, constructions, trees and crops on land plots were in possession of Mr. T2 and Ms. V.
• Forcing Mr. Le Ngoc T2 and Ms. Doan Thi V to pay Ms. Le Thi Thanh X and Mr. Le Ngoc T1 the value of the inheritance that Ms. X and Mr. T1 inherited from Mr. Le Ngoc U and Ms. Bui Thi T, which was VND 191,864,200 (One hundred ninety-one million and eight hundred sixty for thousand and two hundred dongs)
(i) On April 15th, 2015, the defendant Le Ngoc T2 appealed a part of the Judgment.
(j) At the Civil Appellate Judgment No. 25/2017/DS-PT dated September 28th, 2017 of the People’s Court of Hung Yen, it was decided that: Amending the First-instance Judgment No. 01/2015/DS-ST dated March 31, 2015 of the People’s Court of Phu Cu District, Hung Yen province as follows:
• Assigning to Mr. Le Ngoc T2 and Ms. Doan Thi V a land area of 621.2 plot No. 117, map sheet No. 15 of map 299 established in 1981 at Village D, Commune Đ1, District P under the name of Mr. Le Ngoc U.
• Assigning to Ms. Le Thi Thanh X, Mr. Le Ngoc T1, and Ms. Bui Thi P (another name: Bui Thi Huong P) an area of 369m2 (including 174.2m2 of pond land) at land plot No. 117, map sheet No. 15, map 299 esstablished in 1981 at Village D, Commune Đ1, District P under the name of Mr. Le Ngoc U and the property on the ground was a building with four-level house with corrugated iron roof, a breeding shed, and surrounding walls to the West of the allocated land. Ms. Bui Thi P managed the assets of Ms. Le Thi Thanh X and Mr. Le Ngoc T1 (the allocation of the land, assets, and dimensions has a specific diagram attached).
• Ms. Bui Thi P (other name: Bui Thi Huong P) must repay Mr. Le Ngoc T2 and Ms. Doan Thi V the value of the construction on the land plot, which was VND 47,068,000 (Forty-seven million and sixty-eight thousand dongs).
• Forcing Mr. Le Ngoc T2 and Ms. Doan Thi V to repay Ms. Bui Thi P, Ms. Le Thi Thanh X, and Mr. Le Ngoc T1 the value of the inheritance that Ms. P, Ms. X, and Mr. T1 inherited from Mr. Le Ngoc U and Ms. Bui Thi T, which was VND 199,319,000 (One hundred ninety-nine million, three hundred and nineteen thousand dongs).
(k) On October 25th, 2017, Mr. Le Ngoc T2 submitted the written request to review the civil appellate judgment under the cassation procedure.
2. Assessment of the Court
• Based on the testimony of the parties, the parties recognized that the land area of plot number 31, map number 269 in Village D, Commune D1, District P, Hung Yen Province was originally gifted to Mr. Le Ngoc U by the People’s Committee of commune D1 in 1973. This land plot is currently managed and used by Mr. Le Ngoc T2 and Mr. T2 has not obtained the certificate of land-use rights.
• Mr. U and his wife lived for a short time, then moved to Lang Son to live with Ms.P and her husband. That house was lent by Mr. C1’s family so that Mr. T2 could live in it. Meanwhile, Mr. T2 and Ms. S (Mr. C1’s wife) did not admit to borrowing Mr. U’s house and land. They affirmed that because Mr. C1’s family was not eligible for land allocation for residing, Mr. U, on behalf of Mr. C1’s family, applied for the land allocation. Mr. C1 was the person who directly received the land and let Mr. T2 and his wife live on that land and presented Mr. T2’s confirmation of having received the land and building construction on the land to prove it. Based on the witnesses’ confirmation, it was shown in the appraisal record of Mr. T2’s house bricks and bricks brought by Ms. P from Lang Son that there was a basis to determine that houses and properties on land were founded by Mr. T2’s family.
• Regarding the disputed land, it was found that Ms. P and Mr. T2 could not provide papers proving their lawful land use right. However, based on the testimony of the involved parties and the verification minutes at the People’s Committee of Commune Đ1, Mr. Ta Quang H (as a cadastral official of Cooperative D1 in 1960-1978) had the basis to determine that in 1973, Mr. Le Ngoc U was granted land by the People’s Committee of Commune Đ1. It was shown in the verification minute with the cadastral official of Commune Đ1 that Mr. U was the owner of the disputed land plot on the plot map in 1981 and the declaration record in 1982; Mr. Le Ngoc T2 was the owner of the disputed land plot on the commune cadastral map in 1998 and the declaration record in 1998. The fact was that Mr. U and Mr. H’s family did not live on this land plot and has been managed and used by Mr. T2’s family since 1975 and Mr. T2’s family has paid housing and land tax. Mr. Ta Quang H, who delivered the land to Mr. U, also confirmed that the plot of land was not used by Mr. U but by Mr. T2. Then, Mr. U asked for another land because the old plot of land was used by Mr. T2 and the cooperative granted him a second plot of land.
• Content of case law: Although Mr. U was granted the land, Mr. U did not use it but allowed Mr. T2 to use it from 1975 until now. In the process of using the land, Mr. C1 and Mr. T2’s family had to hire people to fill the ground and build and repair houses many times. Mr. U and Mr. H both know this but there was no dispute. The People’s Committee of Commune Đ1 and the witnesses living in this locality determined that Mr. U and Mr. H did not live on the land and did not build a house. After Mr. U and his wife died, Mr. H established a written commitment to confirm that Mr. U had not lived on that land, the land-use rights would be assigned to Mr. T2 and the family had no opinion. Thus, Mr. U was the person granted the land but he did not use it and allowed Mr. T2 to use it since 1974 until now.
In the process of using the land, Mr. T2 built a house and declared and paid the house and land-use tax. Thus, according to the law provisions on land, Mr. T2 was considered to be granted a certificate of land-use rights. The fact that Mr. U did not use the land but his name was on the map No. 299 and the declaration record in 1982 was incorrect and was not a basis to determine that Mr. U was the legal owner of this land. The fact that the First-instance Court and the Appellate Court, based on the allocation of land to Mr. U, determined that the disputed land was owned by Mr. U and his wife accepted the petition of the plaintiffs and deducted for Mr. T2’s effort was unreasonable.
3. Comment on Case law
• The Court decides the merit based on the following details:
(i) After being allowed to “borrow” the land, the Defendant, Mr. T2, directly used the land and many times he hired people to level the land, and build and repair houses on the land. Mr. H’s family knows this entire process but has no opinion about the Defendant’s actions;
(ii) Mr. T2 proactively registered, declared and fulfilled the obligation to pay land tax to the State;
(iii) Mr. H wrote a commitment paper stating that he would deliver the land use rights to Mr. T2, Mr. H’s family had no opinion about that land plot.
Thus, the Court has based on the actual will of each party without relying on or depending on the origin of the land assigned to any object by the State or the plot map or inventory showing the land owner at that time. Case law has shown that these documents are only a form to help provide and authenticate information when necessary and are a tool to help the State manage land. Therefore, these documents are not an accurate basis for settlement as they contradict and deviate from the actual land use.
• At the same time, the Court based on Article 236 of the Civil Code 2015 on the Establishment of ownership rights resulting from prescriptive periods with respect to possession or deriving benefits from property unlawfully, accordingly, the Defendant meets all 04 conditions:
(i) Bona fide;
(ii) Continuous;
(iii) Publicity; and
(iv) Within 30 years for real estate.
Therefore, although Mr. T2 had no legal basis for being allocated land or having land use rights, Mr. T2 “bona fide” possessed and used the land plot. Mr. T2 built a house and lived stably (“continuously”) from the time he “borrowed” the land in 1974 until a dispute arose (“30-year period”), with the local government and many people working admit that Mr. T2’s family lives on the plot of land (“public”). The judgment of the Precedent has enough legal grounds to confirm Mr. T2’s status as a bona fide possessor and that Mr. T2 is in this case being considered for issuance of a Land Use Rights Certificate.
Thus, it can be seen that Case law No. 33/2020/AL has helped improve land law and protect the legitimate rights of bona fide land users when there is no legal basis for land-use rights. Thereby, we can see that Case law has protected and prioritized the actual will of the parties to resolve disputes originating from the time the State allocated land in the 1970s.
Above is the article “Case law No. 33/2020/AL regarding a person allocated land by the state and got the land managed and used stably and permanently by another” by TNTP. We hope the article will be helpful to readers.
Sincerely,
