1.Source of the precedent

Cassation Decision No. 65/2018/GDT-DS dated 06 August 2018 of the High People’s Court of Danang on the civil case “Dispute over enforceable property” in Dak Lak province between the plaintiff Mrs Nguyen Thi K and the defendant Mrs Nguyen Thi T.

2.Factual Background

Mr Nguyen C (Mr C) and Mrs Nguyen Thi K (Mrs K) lived together and managed some lands, but it was not clearly known as to whether they were granted with Land Use Right Certificates (“LURC”) for such land.

In 1978, Mr C and Mrs K gave her son, Mr Nguyen Van D (Mr D), a confirmation letter that they would give him nearly 5,000 m2 land (“Land 1”) to manage and use. However, this land had not been registered under Mr D’s name at that time.  In 1982 and 1983, Mrs K sold Land 1 to Mr N and Mr B against her promise to her son, Mr D. Instead, she consented to give nearly 5,000 m2 of adjacent land (“Land 2”) to Mr D but this time she did not give him a confirmation letter.  In 1983, Mr C and Mrs K had allowed their sons and daughters to use and manage some of their lands.  Subsequently, Mr C and Mrs K moved to overseas to reside.

In 2005, Mr D requested to register land use right for Land 2 to the People’s Committee of City P. In addition to the relevant land documents, the People’s Committee of City P also required him to provide a confirmation letter on land giving, which was signed by Mrs K after she returned to Vietnam. After receiving the sufficient necessary materials, the People’s Committee of City P accordingly granted a LURC to Mr D.

However, Mrs K also requested the People’s Committee of City P to grant her with a LURC with respect to Land 2 even though this land had been registered under Mr. D’s name since 2005. On 9 March 2006, the People’s Committee of City P disregarded the overlap on land use right registrations of Mrs K and Mr D and granted Mrs K a LURC for the Land 2.

On 19 June 2009, the People’s Committee of City P recognised its mistake and issued a Decision to revoke the LURC granted to Mrs K.

In 2010, Mrs K filed a lawsuit against Mr D and his wife, Mrs T to ask for returning Land 2. Mrs K suspected that Mr D adjusted the land position on the documents submitted to the People’s Committee of City P for obtaining the LURC, which resulted in overlap on land use right registration.

3.Applicable law and regulations

• Section 3 – Part III, Section 3 – Part V of Decision No. 201-HDCP/QD of 1 July 1980 of the Government Council on unifying land management and strengthening land management throughout the country;
• Article 14 of the Law on Land 1987; Article 26 of the Law on Land 1993; Clause 11, Article 38, Article 50 of the Law on Land 2003 (corresponding to Point h, Clause 1, Article 64, Article 100 of the Law on Land 2013).

4. Judges’ Analysis and Legal Application

• The disputed land originated from property of Mr C and Mrs K. However, before Mr C and Mrs K resided overseas, they had allowed their sons and daughters to use and manage a few land areas, including Mr D – their son. In consideration of transaction documents between Mrs K and Mr N, Mr B regarding Land 1, and also a confirmation accompanied with Mrs K’s signature stated as above, the Cassation trial panel recognised Mrs K’s intention to allow her son, Mr D to use and manage the Land 2 since 1983, thus it found Mr D’s attestation reasonable.
• On the other hand, Land 2 with which Mr D and his wife were granted the LURC has been subject to agricultural land. In accordance with the Clause 11, Article 38 of the Law on Land 2003 and Point h, Clause 1, Article 64 of the Law on Land 2013, there are a few cases of violation of the Law on Land in which the land shall be confiscated by the State, e.g. “Land for planting annual plants is not used for a period of 12 consecutive months,… ”. The Cassation trial panel determined that since Mr C and Mrs K have resided overseas and have not used the agriculture land for many years, their land is subject to the State’s confiscation. However, Mr D and his wife have directly used and annually declared and paid taxes to the State since that time and also have been granted LURC in 2005, thus having the legitimate right to such land area.
• Therefore, from the above points of view, The Cassation trial panel has sufficient basis to reject Mrs K’s lawsuit.

5. Conclusion

• Legal analysis in Decision No. 65/2018/GDT-DS of the High People’s Court of Da Nang was recognised and developed into Precedent 35 about the allocation of agricultural land to a domestic person before residing overseas. Accordingly, in this case, it is necessary to identify the domestic person who has the legitimate land use right.
• This precedent content clearly indicates that if the person resettles overseas and has not used the agricultural land for several years, the State has the right to confiscate that land area. If a third person directly use the land, annually declares and pays taxes to the State and is granted a LURC by the State as well, he/she shall have lawful use right of such land area.

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