Precedent No. 16/2017/AL on recognizing a land use rights transfer contract as an inheritance transferred by one of the co-heirs in Vietnam

1. What is precedent?

Precedents are arguments and judgments in judgments and decisions that have come into legal effect of the Court on a specific case selected by the Council of Judges of the Supreme People’s Court and announced by the Chief Justice of the Supreme People’s Court as precedents for the Courts to study and apply in adjudication. (Article 1 of Resolution 04/2019/NQ-HDTP)

The selected precedent must meet the following criteria:

– Has the value of clarifying legal provisions that can be understood differently, analyzing and explaining legal issues and events, and pointing out principles, handling guidelines, and legal norms that need to be applied in a specific case or demonstrating fairness for issues that do not have specific legal provisions;

– Have standards;

– Has guiding value in uniform application of law in trials.

2. Precedent No. 16/2017/AL on recognizing a land use rights transfer contract as an inheritance transferred by one of the co-heirs

2.1. Source of case law

Final judgment No. 573/2013/DS-GDT dated December 16, 2013 of the Civil Court of the Supreme People’s Court on the civil case “Property inheritance dispute” in Vinh Phuc province between the plaintiffs Ms. Phung Thi H1, Ms. Phung Thi N1, Ms. Phung Thi H2, Ms. Phung Thi P and the defendant Mr. Phung Van T; persons with related rights and obligations including Ms. Phung Thi N2, Ms. Phung Thi H3.

Location of case law:

Paragraph 2 of “Court’s Opinion”.

2.2. Overview of the content of the precedent

– Case law:

The inheritance is real estate that has been transferred by one of the co-heirs. The other co-heirs knew about and did not object to the transfer. The money received from the transfer has been used to take care of the co-heirs’ lives. The transferee has been granted a land use rights certificate.

– Legal solutions:

In this case, the Court must recognize the land use rights transfer contract as legal and the transferred land area is no longer included in the inheritance block but belongs to the right of use of the transferee.

Legal provisions relating to precedents:

Clause 2, Article 170, Article 234, Article 634, Article 697 of the Civil Code of Vietnam 2005 (equivalent to Clause 2, Article 221, Article 223, Article 612, Article 500 of the Civil Code of Vietnam 2005).

Keywords of the case:

“Establishing ownership by agreement”; “Inheritance”; “Inheritance is real estate”; “Co-inheritance”; “Transfer of land use rights”.

CASE CONTENT:

According to the petition dated April 2, 2011 and the following statements, the plaintiffs Ms. Phung Thi H1, Ms. Phung Thi N1, Ms. Phung Thi P, and Ms. Phung Thi H2 stated:

The plaintiff’s parents, Mr. Phung Van N and Mrs. Phung Thi G, had 6 children: Phung Thi N1, Phung Thi N2, Phung Thi H2, Phung Van T, Phung Thi P, Phung Thi H1.

The common property of Mr. Phung Van N and Ms. Phung Thi G is a level 4 house and outbuildings on a land area of ​​398m2 ⁱⁿ  area L, ward M, city N, Vinh Phuc province, the land origin was left by his father. On July 7, 1984, Mr. Phung Van N died (before his death, he did not leave a will), Ms. Phung Thi G and Mr. Phung Van T managed and used the above land. In 1991, Ms. Phung Thi G transferred to Mr. Phung Van K a part of the above land area with a land area of ​​131m2 ^, the remaining area is 267m2 ^, in 1999 Ms. Phung Thi G was granted a land use rights certificate. Mrs. Phung Thi G wanted to give her daughter, Ms. Phung Thi H1, a part of her land to build a house because Ms. Phung Thi H1 got married far away, her husband died so she wanted her to come back to live with her, but Mr. Phung Van T held the land use right certificate so Mrs. Phung Thi G could not separate the land for Ms. Phung Thi H1. Therefore, she filed a lawsuit in court to force Mr. Phung Van T to return the land use right certificate to Ms. Phung Thi G. The court ordered Mr. Phung Van T to return the land use right certificate to Ms. Phung Thi G, but Mr. Phung Van T did not return it. Therefore, in March 2010, Ms. Phung Thi G made a will with the following content: Leaving to Ms. Phung Thi H1 an area of ​​90m2 of land ^and  all the trees and plants on the land area with the following dimensions: The East borders Ms. Phung Thi G’s land area, the West borders Mr. N’s house, the South borders T Street, the North borders Mr. C’s house. When making the will, Ms. Phung Thi G was completely lucid and healthy, there were witnesses and the will was certified by the People’s Committee of Ward M. The entire area of ​​398m2 ^belongs  to Ms. Phung Thi G because when Mr. Phung Van N died, Ms. Phung Thi G had full rights to use it.

On December 19, 2010, Mrs. Phung Thi G died, the entire property above is still managed and used by Mr. Phung Van T and his wife. Now, the plaintiffs request the Court to resolve the division of inheritance according to the will that Mrs. Phung Thi G left to Ms. Phung Thi H1, which is 90m2 ^, the remaining part is 177m2 ^,  requesting to divide according to the law, the inheritance portion of Ms. Phung Thi N1, Ms. Phung Thi P, Ms. Phung Thi H2 is given to Ms. Phung Thi H1 for use. In addition, the plaintiffs do not request the Court to resolve the property of trees on the land and the agricultural land area of ​​Mrs. Phung Thi G.

The defendant Mr. Phung Van T, presented by Ms. Phung Thi H3 (wife) who is also a person with related rights and obligations, confirmed that she confirmed the relationship between parents and siblings in the family, the property left by parents is a land area of ​​398m2 ⁱⁿ  area L, ward M, city N and the time of death of parents as presented by the plaintiffs is correct but the entire construction on the land was built by the couple in 1997. In 1991, Ms. Phung Thi G arbitrarily sold 131m2 ^to  Mr. Phung Van K without discussing with Mr. Phung Van T, how much money she used for what Mr. Phung Van T did not know. In 1999, Ms. Phung Thi G was granted a land use right certificate with the remaining area of ​​267.4m2 ^, Mr. Phung Van K was also granted a land use right certificate purchased from Ms. Phung Thi G. When Ms. Phung Thi G was alive, she did not make a will or not. Now, the sisters in the family filed a lawsuit requesting to divide the inheritance according to the will and the law. Mr. Phung Van T disagreed because his parents only had him as a son, so he used it to live and worship his ancestors, and did not agree to divide the inheritance. In addition, Ms. Phung Thi G also had an area of ​​agricultural land, but Mr. Phung Van T did not request to divide the inheritance.

The person with related rights and obligations, Ms. Phung Thi N2, stated: she confirmed that the relationship between her parents and siblings in the family, the property left by her parents, the land area of ​​398m2 ⁱⁿ  area L, ward M, city N, and the time of her parents’ death as stated by the plaintiffs were correct. In 1991, her mother transferred an area of ​​131m2 to Mr. Phung Van K. ^When the transfer was made, her sisters all knew about this, but she did not know the amount of money, she only knew that her mother used that money to pay off debts and raise her children. The remaining area of ​​267.4m2 ^was  granted to her mother in 1999 under the name of Phung Thi G, which is currently being used and managed by Mr. Phung Van T. When her mother was alive, she did not know whether she had made a will or not. Now, Ms. Phung Thi N1, Ms. Phung Thi H1, Ms. Phung Thi H2, Ms. Phung Thi P requested to divide the inheritance of the above land area. She did not agree because her parents only had Mr. Phung Van T as a son, so Mr. Phung Van T had to live and worship. If the Court decides to divide the inheritance according to the law, she will not accept her inheritance but will give it to Mr. Phung Van T.

With the content of the case as above;

In the Civil Judgment at First Instance No. 11/2011/DSST dated October 4, 2011, Vinh Yen City People’s Court decided:

– Partially accept the lawsuit request of Ms. Phung Thi H1, forcing Mr. Phung Van T to be responsible for paying Ms. Phung Thi H1 a total amount of 340,000,000 VND (worth 68m2 ^of  land). Assign Mr. Phung Van T to use the land area of ​​68m2 ^on  map sheet No. 32, plot number 81 in residential area L, ward M, city N, Vinh Phuc province (with surrounding areas).

– Not accepting the request of Ms. Phung Thi N1, Ms. Phung Thi H2, Ms. Phung Thi P to sue to divide the inheritance of Ms. Phung Thi G’s property according to the law.

In addition, the Court of First Instance also decides on court fees and the parties’ right to appeal.

After the first instance trial, on January 18, 2011, the plaintiffs Ms. Phung Thi N1, Ms. Phung Thi H2, Ms. Phung Thi P, Ms. Phung Thi H1 appealed, disagreeing with the decision of the first instance judgment, requesting the Court to divide the inheritance according to the will and the law.

In the Civil Appeal Judgment No. 06/2012/DSPT dated February 23, 2012 of the People’s Court of Vinh Phuc province, it was decided to amend the Civil First Instance Judgment No. 11/2011/DSST dated October 4, 2011 of the People’s Court of Vinh Yen city.

– Accept the request for inheritance division of Ms. Phung Thi N1, Ms. Phung Thi H2, Ms. Phung Thi H1, Ms. Phung Thi P.

– Deliver to Mr. Phung Van T and his legal representative, Ms. Phung Thi H3, area 267.4m2 ^, value 1,337,000,000 VND, plot number 81, map sheet number 32 in quarter L, ward M, city N.

– Mr. Phung Van T and his legal representative, Ms. Phung Thi H3, are responsible for paying the inheritance value to Ms. Phung Thi H1 of 982,200,000 VND.

From the date Ms. Phung Thi H1 filed a request for enforcement of the judgment, if Mr. Phung Van T and his legal representative, Ms. Phung Thi H3, do not pay the above amount, then every month Mr. Phung Van T and Ms. Phung Thi H3 must also pay interest at the basic interest rate prescribed by the State Bank of Vietnam corresponding to the time the judgment has not been enforced.

In addition, the Court of Appeal also decides on court costs.

After the appeal trial of Ms. Phung Thi H3, Mr. Phung Van T filed a request to review the above civil appeal judgment of the People’s Court of Vinh Phuc province.

In Decision No. 131/QD-KNGDT-V5 dated November 12, 2013 of the Chief Justice of the Supreme People’s Procuracy on the Civil Appeal Judgment No. 06/2012/DSPT dated February 23, 2012 of the People’s Court of Vinh Phuc province; with the following opinion:

The Court of Appeal did not include the land area that Ms. Phung Thi G sold to Mr. Phung Van K in the assets to be divided, which is reasonable. The Court of First Instance determined that the inheritance is a total land area of ​​398m2 ⁽  including the land sold to Mr. Phung Van K) to be divided, which is incorrect.

However, the area of ​​267m2 ^of  land under the name of Ms. Phung Thi G must be determined as the joint property of Mr. Phung Van N and Ms. Phung Thi G that has not been divided. Ms. Phung Thi G only has the right to decide on 1/2 of the total area of ​​267m2 of ^the  joint land of the couple, which is 133.5m2 – 90m2 ⁽  already given to Ms. Phung Thi H1), the remaining 43.5m2 ^is  divided among 5 heirs.

Regarding 1/2 of the total land area of ​​267m2 ^of  the common land of the couple, which is the inheritance of Mr. Phung Van N, the inheritance division period has expired, and Mr. Phung Van T is currently managing it, he can continue to manage it. The Court of Appeal determined that the entire area of ​​267m2 ^of  land is the inheritance of Mrs. Phung Thi G to be divided according to the will to Ms. Phung Thi H1, 90m2 ^of  land, and the remaining land of 177.4m2 ^to  be divided according to the law into 5 shares, which is incorrect.

At the appeal hearing, the representative of the Supreme People’s Procuracy upheld the content of the Chief Prosecutor’s appeal and requested the Trial Panel to accept the Chief Prosecutor’s appeal.

JUDGMENT OF THE COURT:

[1] Based on the documents in the case file, the area of ​​398 square ^meters  of land located in Quarter L, Ward M, City N, Vinh Phuc is the common property of Mr. Phung Van N and Mrs. Phung Thi G. Mr. Phung Van N and Mrs. Phung Thi G have 6 children together: Ms. Phung Thi H1, Ms. Phung Thi N1, Ms. Phung Thi H2, Mr. Phung Van T, Ms. Phung Thi P, Ms. Phung Thi N2. On July 7, 1984, Mr. Phung Van N died without leaving a will, Ms. Phung Thi G and Mr. Phung Van T managed and used the above land and house.

[2] In 1991, Ms. Phung Thi G transferred to Mr. Phung Van K an area of ​​131m2 ^out  of a total area of ​​398m2 ^of  the above land plot; the remaining land area of ​​the land plot is 267.4m2 ^. In 1999, Ms. Phung Thi G was granted a land use right certificate, an area of ​​267.4m2 ^. Ms. Phung Thi G and Mr. Phung Van T’s couple still manage and use this land. Ms. Phung Thi G’s children all knew about Ms. Phung Thi G’s transfer of land to Mr. Phung Van K, but no one had any objections. Ms. Phung Thi G’s children testified that Ms. Phung Thi G sold the land to take care of her and her children’s lives. Now, Mr. Phung Van K has also been granted a land use right certificate by the state agency. Therefore, there is a basis to determine that Ms. Phung Thi G’s children agreed to let Ms. Phung Thi G transfer the above-mentioned area of ​​131m2 ^to  Mr. Phung Van K. The appellate court’s failure to include the land area that Ms. Phung Thi G sold to Mr. Phung Van K in the assets to be divided is reasonable. The court of first instance’s determination that the inheritance is a total land area of ​​398m2 ⁽  including the land sold to Mr. Phung Van K) to be divided is incorrect.

[3] On December 19, 2010, Ms. Phung Thi G died. Before her death, she left a will dated March 5, 2009, leaving to Ms. Phung Thi H1 (Ms. Phung Thi G’s daughter) an area of ​​90 square meters ^of  land out of the total area of ​​267 square ^meters  of land above. The will was certified by the People’s Committee of Ward M on March 7, 2009. Although the will was not made and certified on the same day, through the opinion of the People’s Committee of the ward and the testimony of the witnesses in the will, there is a basis to determine that Ms. Phung Thi G made the will while she was still lucid and the content of the will was according to Ms. Phung Thi G’s wishes, so the Court at two levels accepted the will as reasonable and emotional.

[4] However, the area of ​​267m2 ^of  land is under the name of Ms. Phung Thi G, but was formed during the marriage, so it must be determined as the joint property of Mr. Phung Van N and Ms. Phung Thi G that has not been divided. Ms. Phung Thi G only has the right to decide on 1/2 of the land area in the total area of ​​267m2 of ^the  joint land of the couple. Therefore, the inheritance left by Ms. Phung Thi G is 1/2 of the property (133.5m2 ⁾ divided according to the will to Ms. Phung Thi H1 (Ms. Phung Thi G’s daughter) is 90m2 ^, the remaining 43.5m2 ^is  divided into 5 remaining shares (in which Ms. N2 gives the inheritance share to Mr. Phung Van T; Ms. Phung Thi H2, Ms. Phung Thi N1 and Ms. Phung Thi P give the inheritance share to Ms. Phung Thi H1). Regarding 1/2 of the land area in the total area of ​​267m2 ^of  the common land of the couple, which is the inheritance left by Mr. Phung Van N, the inheritance division period has now expired. Mr. Phung Van T is one of the heirs who does not agree to divide. According to the provisions of sub-section 2.4, section 2, part I of Resolution No. 02/2004/NQ-HDTP dated August 10, 2004 of the Council of Judges of the Supreme People’s Court, the conditions for dividing the common property are not met, so whoever is managing and using this land area can continue to manage and use it.

[5] The Court of Appeal determined that the entire area of ​​267m2 ^of  land was the inheritance of Ms. Phung Thi G to be divided according to the will to Ms. Phung Thi H1, 90m2 ^of  land, and the remaining land of 177.4m2 ^to  be divided according to the law into 5 shares, which was incorrect.

[6] In addition, Mr. Phung Van T did not appeal, but the Court ruled that Mr. Phung Van T must pay 200,000 VND in appeal fees. Ms. Phung Thi N1, Ms. Phung Thi H2, and Ms. Phung Thi P voluntarily gave up their shares to Ms. Phung Thi H1 and the Court accepted it. Ms. Phung Thi H1 is a poor household and is exempted from all court fees, but the Court of Appeal did not return the advance payment of first-instance court fees to Ms. Phung Thi N1, Ms. Phung Thi H2, and Ms. Phung Thi P, which is incorrect. Therefore, the appeal of the Chief Justice of the Supreme People’s Procuracy is acceptable.

For the above reasons, pursuant to Clause 2, Article 291, Clause 3, Article 297 and Article 299 of the Civil Procedure Code;

DECISION:

Annul the entire Civil Appeal Judgment No. 06/2012/DSPT dated February 23, 2012 of the People’s Court of Vinh Phuc province and the Civil First Instance Judgment No. 11/2011/DS-ST dated October 4, 2011 of the People’s Court of Vinh Yen city, Vinh Phuc province on the case of “Property inheritance dispute” between the plaintiffs Ms. Phung Thi H1, Ms. Phung Thi N1, Ms. Phung Thi H2, Ms. Phung Thi P and the defendant Mr. Phung Van T and the people with related rights and obligations including Ms. Phung Thi N2, Ms. Phung Thi H3.

Transfer the case file to the People’s Court of Vinh Yen city, Vinh Phuc province for retrial according to the provisions of law.

CONTENT OF THE PRECEDENT

“[ 2 ]  In 1991, Ms. Phung Thi G transferred to Mr. Phung Van K an area of ​​13.1 ^m2 out of  the total area of ​​398 ^m2  of the above land plot; the remaining land area of ​​the land plot is 267.4 ^m2 . In 1999, Ms. Phung Thi G was granted a land use right certificate, an area of ​​267.4 ^m2 . Ms. Phung Thi G and her husband, Mr. Phung Van T , still manage and use this land. Ms. Phung Thi G’s children all knew about Ms. Phung Thi G’s transfer of land to Mr. Phung Van K , but no one had any objections . Ms. Phung Thi G’s children testified that Ms. Phung Thi G sold the land to take care of her and her children’s lives. Now, Mr. Phung  Van K has also been granted a land use right certificate by the state agency. land. Therefore, there is a basis to determine  that Ms. Phung Thi G’s children agreed  to let  Ms.  Phung Thi G transfer the  above-mentioned area of ​​131 m2 to Mr. Phung Van K. The appellate court’s decision ^not to include the land area that Ms. Phung Thi G sold to Mr. Phung Van K in the assets to be divided  is reasonable. The court of first instance ‘s determination that the inheritance is a total land area of ​​398 ^m2  (including the land sold to Mr. Phung Van K) to be divided is incorrect.”