Disputes over house ownership by Vietnamese residing abroad in the name of the household and application of Case Law No. 02/2016/AL

Dr. NGUYEN THI MINH PHUONG (Ho Chi Minh City People’s Court) – Within the scope of the article, the author focuses on clarifying the legal provisions on house ownership in Vietnam of overseas Vietnamese. and practice of settling house ownership disputes of overseas Vietnamese and applying Case Law No. 02/2016/AL dated April 6, 2016 of the TANDTC to settle requests for contributions to increase in the value of the household’s property.

Source: Collector

  1. Housing ownership rights of overseas Vietnamese

According to Clause 3, Article 3 of the 2008 Law on Vietnamese Nationality, it stipulates: “ Overseas Vietnamese are Vietnamese citizens and people of Vietnamese origin residing and living in a foreign country for a long time. “The 2013 Constitution in Article 22 stipulates: “Citizens have the right to a lawful place of residence” and Article 32 continues to affirm that “ Everyone has the right to own lawful income, savings, housing, …” .

Regulations on “ ownership rights ” and principles for establishment and exercise of ownership rights and other rights to property are specified in Part II, Chapter XI of the 2015 Civil Code. Accordingly, in Article 158 of the Code. Civil Code 2015 (abbreviated as “ Civil Code 2015 ”) stipulates: “ Ownership includes the right to possess, use and dispose of property of the owner in accordance with the law ”. Ownership is a fundamental right of citizens. The owner of property exercises power over the property under his/her ownership by possessing, using and disposing of such property. And according to the definition of ” Property ” in Article 105 of the Civil Code 2015, housing is property- immovable property.

Housing ownership (abbreviated as “ House QSH ”) in “) carries the nature of property ownership. The house owner exercises the rights of the owner through the ” right to possess, use and dispose of ” the house under his/her lawful ownership according to the law.

Article 117 of the 2015 Civil Code stipulates that a civil transaction shall take effect when the following conditions are fully satisfied: i) The subject has civil legal capacity suitable for the established civil transaction; ii) Entities participating in civil transactions are completely voluntary; iii) The purpose and content of the civil transaction do not violate the prohibition of the law and do not violate social ethics. iv) The form of a civil transaction is the effective condition of a civil transaction in case it is provided for by law.

The law on housing stipulates the conditions for the validity of the house sale and purchase contract in Articles 118, 119, 120, 121 and Article 122 of the Law on Housing 2014. With the provisions of the law mentioned above, Vietnamese people If they live abroad and are eligible for housing ownership in Vietnam, when buying a house, they must satisfy the provisions on civil legal capacity and civil act capacity.

  1. Conditions for Vietnamese people residing abroad to own houses

Vietnam’s housing law from time to time has different provisions on house ownership rights of overseas Vietnamese. Specifically:

2.1. The period from September 30, 2001 and earlier

The Housing Ordinance 1991 in Article 16 only stipulates the ownership of housing in Vietnam of foreigners during the investment period or during the period of long-term settlement and permanent residence in Vietnam, if the international treaty that Vietnam signed or acceded to without other provisions. And Article 80 of the 1993 Land Law stipulates: Overseas Vietnamese may only be assigned land use rights through the form of land lease; Rights and obligations of land tenants shall be submitted by the Government to the National Assembly Standing Committee for decision . Thus, the law on housing and land at this stage does not stipulate the ownership of housing in Vietnam of overseas Vietnamese.

2.2. The period from October 1, 2001 to June 30, 2006

From October 1, 2001, according to Law No. 25/2001/QH10 dated June 29, 2001 amending and supplementing Article 80 of the 1993 Land Law, stipulating: Vietnamese people settle abroad if satisfy the following conditions: (1) For long-term investment, there is a need for housing during the investment period in Vietnam; (2) meritorious contributions to the country; (3) culturalists and scientists who have a need for regular activities in Vietnam to serve the cause of national construction; (4) people who have a need to live stably in Vietnam are entitled to housing ownership rights attached to residential land in Vietnam ; and according to Decree No. 81/2001/ND-CP dated October 5, 2001 of the Government stipulating: Overseas Vietnamese who are allowed to buy houses for living attached to residential land use rights in Vietnam must be returnees. permanently or temporarily reside in Vietnam and hold a valid Vietnamese passport or valid foreign passport and papers (must have a certificate of Vietnamese nationality or a certificate of loss of Vietnamese nationality or Citizenship registration certificate ) belongs to one of the following four subjects: (1) Persons with long-term investment in Vietnam ( according to the provisions of the Law on Foreign Investment in Vietnam or the Law on Promotion of Domestic Investment, be granted an investment license or a business registration certificate issued by a competent state agency ); (2) People with meritorious services to the country; (3) Culture houses, scientists and experts on regular activities in Vietnam ; (4) has an application for permanent residence in Vietnam and is approved by a competent authority of the Vietnamese diplomatic mission and must fully satisfy the conditions specified in Article 6 of the Decree. The image is QSH housing in Vietnam.

From July 1, 2004, according to Clause 6, Article 9 of the 2003 Land Law, “ Vietnamese people residing abroad for investment, cultural activities, regular scientific activities or to live stably in Vietnam land allocated or leased by the Vietnamese State, and may purchase houses associated with residential land use rights . Thus, when the conditions prescribed by the law above are not fully satisfied, overseas Vietnamese are not allowed to exercise the rights of land users specified in Article 106 of the 2003 Land Law and when It is illegal for them to participate in the transaction of transferring land use rights, buying and selling houses.

2.3. The period from July 1, 2006 to present

The law on housing ownership in Vietnam for overseas Vietnamese in this period has continuously changed to meet the needs of international economic integration; Specifically: From July 1, 2006, according to the 2005 Housing Law, Article 126 has stipulates more openness and shortens the duration of residence ” from six months or more to own a separate house or an apartment. ” “For overseas Vietnamese who have returned to Vietnam to reside and wish to stay in Vietnam. And on September 1, 2009 according to Law No. 34/2009/QH amending and supplementing Article 126 of the Law on Housing, the residence time in Vietnam for this subject has been shortened to “03 months or more”. up” upon returning to Vietnam to reside and wish to stay in Vietnam.

From September 1, 2006, according to Resolution No. 1037/2006/NQ-UBTVQH dated July 27, 2006 of the National Assembly Standing Committee to settle transactions of buying and selling privately owned houses established by the National Assembly. before July 1, 1991, there are overseas Vietnamese participating, in which case: (1) there is a written contract jointly signed by the parties; (2) The person who is staying in the home can prove that he or she has legally purchased the house there; (3) The house owner, the heir of the house or the person authorized by the house owner who admits to have sold the house is considered a house sale and purchase contract and the parties must complete the procedures. transfer ownership if there is no dispute. If there is a dispute without completing the ownership transfer procedure; or the procedures have been completed but the house has not been delivered or fully paid, the parties shall continue to perform the rights and obligations in the contract as prescribed in Articles 13 and 14 of the resolution. A house sale and purchase contract whose purpose or content violates a prohibition of law or is contrary to social morals shall be invalidated in whole or in part; legal consequences shall be settled according to the provisions of the 2005 Civil Code; The period from July 1, 1996 to September 1, 2006 is not included in the statute of limitations for dispute settlement for housing transactions involving overseas Vietnamese.

Along with the provisions: “ Overseas Vietnamese who have the right to own houses in accordance with the law on housing have the right to own houses associated with the right to use residential land in Vietnam. Nam ” in Clause 1, Article 186 of the Land Law 2013, from July 1, 2015 according to the Law on Housing and the Law on Real Estate Business 2014, only Vietnamese residing abroad “ are allowed to enter Vietnam. Male “, has full civil act capacity, is eligible to buy houses in Vietnam, is entitled to housing ownership in Vietnam.

Thus, if a Vietnamese residing abroad does not have a house ownership right in Vietnam, when buying a house before December 30, 2016 it will be considered a violation of Point b, Article 122 of the 2005 Civil Code; and from January 1, 2017, the house sale and purchase contract entered into by these entities will be based on Article 122, Article 131 of the Civil Code 2015 to declare the transaction invalid and deal with the consequences of the invalid transaction. when there is a dispute because of a violation of the effective conditions for civil transactions specified at Point a, Clause 1, Article 117 of the Civil Code 2015 and point b, Clause 2, Article 119 of the Law on Housing 2014 on conditions of the parties involved. housing transactions. This problem means that when the subject does not have full civil act capacity and legal capacity, the house purchase transaction but wants to cover it up by asking someone who has full civil act capacity and is allowed to do so. QSH house in the name of the house purchase and sale contract and on the land use right certificate, the contract will be void.

  1. Actual settlement of disputes over housing ownership with Vietnamese residing overseas thanks to domestic people in the household name and application of Case Law 02/2016/AL

The following case ” Dispute over ownership of land and real estate “, can be seen from the point of view of the settlement in the application of the provisions of the Housing Law, the Land Law and the Court’s Case Law 02, sometimes, sometimes not. exactly.

Case summary . On February 16, 1998, Ms. NTS (abbreviated as plaintiff ) and Ms. NTH (abbreviated as defendant ) signed a house sale and purchase agreement signed at the People’s Committee of Ward X to buy a house with an area of 40.8m2 out of 688.32m2 . The land is located at No. A, Ward X, District G, City. Mr. LTD’s price was 230 taels of SJC gold, the parties made and made a Gold Receipt, Minutes of handing over the house and campus on February 17, 1998; At the same time, the plaintiff also compensated 15 taels of gold for Mr. HVD who is renting the house to hand over the house to Mr. LTD. On March 24, 1998, the defendant and Mr. LTD re-signed the Real Estate Sale and Purchase Contract No. 2059/HD-MBN at the Notary Office, priced at VND 30 million (no area specified). Because they are overseas Vietnamese, the plaintiff and his wife asked the defendant to help them on the house and land purchase and sale documents. On May 25, 1999, the defendant signed a ” Certificate of ownership of real estate ” acknowledging the money to buy the house of the plaintiff and his wife to invest in VA school and the defendant’s name on the sale and purchase paper. The plaintiff requested the Court to recognize the ownership of the above-mentioned house and land as the plaintiff’s. The defendant disagrees with the plaintiff’s request and claims to be entitled to ½ of the difference due to the defendant’s name on behalf of the plaintiff according to Case No. 02/2016/AL. The person concerned has independently requested Mr. PTA to cancel the Notarized House Purchase and Sale Contract dated March 24, 1998 and the Land Use Right Transfer Certificate signed at the People’s Committee of Ward X on February 16, 1998 because he believes that Mr. and the defendant contributed 125 taels of gold to buy the disputed house and land but could not provide proof.

In the Civil Judgment No.1201/DS-ST dated September 13, 2017 the first instance court ruled: Accepting the plaintiff’s request; determine the disputed land is owned by the plaintiff. The plaintiff has the right to contact the competent authority to carry out procedures for granting certificates of house ownership and land use rights according to regulations for overseas Vietnamese. Do not accept Mr. PTA’s independent request. Do not accept the defendant’s request to receive remuneration in his/her name.

The judgment of the Court of First Instance is supported in the Judgment No. 155/DS-PT dated May 8, 2019 of the Court of Appeal, specifically: Not accepting the appeal request of the defendant and related parties. authorities have independent claims; uphold the first-instance civil judgment No. 1201/DS-ST dated September 13, 2017.

However, on August 11, 2020, the People’s Court of Vietnam issued the decision on cassation review No. 44/2020/DS-GDT canceling the entire first-instance civil judgment and the above-mentioned appellate judgment on the grounds that the area was not clear. 660.05m 2 of land includes what types of land and the defendant’s contribution.

The author believes that the People’s Court to cancel the settlement results of the 2-level Court is correct. The fact that the 2nd level Court has based on the following original documents: The certificate dated May 25, 1999 shows the signature of the defendant and contains the content that the defendant acknowledges the money to buy the house of the plaintiff and his wife to invest in the school. VA, the defendant is named on the deed of sale of the house. The assessment conclusion dated September 14, 2006 of the Institute of Science and Technology of the General Department of Police also determined: “The signature of HTH’s name on the certificate of real estate ownership… dated May 25, 1999 is a direct signature and is signed before stamping “Viet Anh Private Primary School”; Minutes of agreement on division of VA school’s assets dated June 10, 2011 upon dissolution, showing that the school’s assets do not have land and house in dispute; Transfer of land use right signed on February 16, 1998 at the People’s Committee of Ward X, Golden receipt, Minutes of handing over the house and premises dated February 17, 1998 between the plaintiff, the defendant and Mr. D and the house sale and purchase contract made at the Notary Public Office on March 24, 1998 between the defendant and Mr. LHD; Testimony at the Court of the litigants all admitted that the house and land were not the property of the VA school. There is no evidence to prove that the defendant and Mr. PTA contributed 125 taels of gold to purchase the house and land together to determine that the amount of 245 taels of gold belonged to the plaintiff to pay for the purchase of house and land and was completely purchased by the defendant in the defendant’s name. exactly.

The issue that needs to be clarified is whether the house and land are recognized as belonging to the plaintiff or not? How to settle the defendant’s request to calculate the contribution to increase the value of house and land in the name of the household? Legal basis for settlement.

Regarding the settlement of the plaintiff’s request for recognition of house and land ownership rights

According to the Court , the plaintiff and his wife are overseas Vietnamese, are Vietnamese residing abroad who are allowed to enter and exit many times into Vietnam, have valid US passports and visa exemption papers until the end of the month. March 2020; the plaintiff is an investor in Vietnam; Therefore, based on Clause 2, Article 5, Clause 1, Point b, Clause 2, Article 8 of the Law on Housing 2014, Article 3 of the Law on Nationality 2008, the plaintiff is eligible to own a house in Vietnam for Vietnamese. settled in a foreign country to live and invest in Vietnam and then adjudicated: Determine the entire house and land owned by the plaintiff.

a general rule , when settling disputes over ownership of houses and land that overseas Vietnamese spend money to buy and ask others to act in the name of the household (assistance), it requires the judge to comprehensively study and the system of regulations. housing and land legislation and related guiding documents; collect documents and evidences proving that overseas Vietnamese have spent money and asked domestic people to buy house and land and signed the name of the household in the house and land purchase contract and on the certificate. or not? At the time of trial, do overseas Vietnamese have the right to own houses in Vietnam? Depending on documents and other evidences related to the case, the settlement results are different. In case overseas Vietnamese are not eligible for housing QSH in Vietnam to send money to buyers and are in the name of house and land households in Vietnam, but at the time of the dispute, they are subject to If they are granted housing rights, they will be recognized for Vietnamese people residing in the country whose housing rights are attached to residential land use rights that they have asked to buy and are in the household’s name.

In the event of a dispute that they do not have housing ownership, transactions between overseas Vietnamese and Vietnamese in the household’s name on the house-land documents will be invalidated due to a violation of the law’s prohibition; then the Court must determine the real estate value at the time of trial: (1) If it is higher than the purchase price, the difference is divided by each party ½; (2) if the purchase price is equal to the purchase price, force the person in the name of the household to pay the overseas Vietnamese with the exact amount (gold) spent to buy the house and land; (3) If the purchase price is lower than the purchase price, the person in the household’s name shall refund the overseas Vietnamese with the correct amount of gold according to the assessed value. In case the person in the name of the household does not agree to receive the house or land or is not eligible to buy it, the house and land must be sold for sale according to regulations and handled: (1) If the house and land price at the time the house and land price is If the sale price is higher than the purchase price, then pay the Vietnamese residing overseas with the exact amount (gold) spent to buy a house and land, the remaining sale amount divided by each party ½ ( Example : Send back 2 billion VND, the current price is 5 billion VND, overseas settlers will receive 3.5 billion VND); (2) If the value of the property at the time of sale is lower than the purchase price, the overseas Vietnamese will receive the entire sale amount. The question is that overseas Vietnamese are entitled to housing ownership rights associated with land use rights, but what type of land or all types of land?

In fact, in this case, according to the house sale and purchase paper dated February 16, 1998 signed at the People’s Committee of Ward X, the parties bought and sold a house with an area of 40.8m 2 on land of 688.32m 2 ; Thus, in the area of 688.32 m 2 ( the actual measurement is 660.05 m2 ) the disputed land only has the residential area attached to the residential land with the area of 40.8 m 2 , the rest of the land area. (660.05m 2 -40.8m 2 ) has not been verified and clarified by the Court what type of land is, but the 2nd level Court has declared and recognized the plaintiff to have housing and all land use rights with an area of 660, 05m 2 . This ruling is understood that the two-level Court has determined that overseas Vietnamese who are entitled to housing ownership in Vietnam are entitled to land use rights for all types of land.

Author’s point of view. Overseas Vietnamese who are entitled to housing QSH in Vietnam may only have their residential land use rights recognized. Because according to Article 10 of the Land Law 2013, land classification includes: Group of agricultural land, group of non-agricultural land and group of land for which the purpose of use has not been determined; type of ” residential land ” is classified as ” non-agricultural land “. Article 101 of the 2013 Land Law stipulates that the conditions for recognition of agricultural land use rights must be those who are directly engaged in agricultural production, forestry, aquaculture, or salt production. According to Article 8 of the Law on Housing 2014 stipulating that overseas Vietnamese are entitled to housing QSH “through the form of buying, renting and buying commercial houses….; receive the transfer of residential land use rights in the commercial housing construction investment project…”; Thus, this subject is only entitled to housing ownership “attached to residential land use rights ” but not to housing ownership associated with all types of land. Therefore, in order to solve the case correctly and legally, it is necessary to determine and clarify what type of land the disputed land belongs to? Suppose, after verifying and clarifying that the remaining area is agricultural land (not residential land), then the results of the settlement of the case will change, the plaintiff only has the right to claim the part of the house attached to the land. associated with the land use right in the area of 40.8m 2 and the amount equivalent to 245 taels of gold and the additional value of the land use rights after deducting the amount of 245 taels of gold and the amount equivalent to the contribution effort. increase the value of the defendant’s land use rights (if any); or receive back an amount equivalent to the current house – land value if the value of the house does not increase or decrease in value. Thus, the fact that the Court of 2 granted recognition to the plaintiff for housing ownership associated with the entire land use right without determining what type of land the disputed area is was not in accordance with the provisions of the Law on Housing. 2014 and the Land Law 2013.

About settle the defendant’s claim to be entitled to of the property value due to his efforts in his name according to Case Law No. 02/2016/AL dated April 6, 2016

The application of case law to dispute settlement has been used by many countries around the world for a long time, typically in France, the US, Korea, Japan, etc. Civil Code 2015 of Vietnam in Article 45 on principles of case settlement. civil matters in the absence of applicable laws then Courts apply basic principles of civil law, case law, and fairness to settle civil cases when custom and similar practices cannot be applied. Resolution No. 03/2015 dated October 29, 2015 and Resolution 04/2019/HDTP dated June 18, 2019 of the People’s Court on the process of selecting, announcing and applying case precedents will be officially applied at Vietnam. Regarding the determination of efforts to contribute to increase the value of houses and land of the person in the name of the household buying houses and land for overseas Vietnamese, there is Case No. 02/2016/AL approved by the Court of Justice of the TANDTC. dated April 6, 2016 on the basis of Decision No. 220/QD-CA on the publication of case precedent of the Chief Justice of the People’s Court.

Case precedent No. 02/2016/AL is allowed to be applied 45 days after its publication on April 6, 2016 but so far the application of this precedent into trial practice is still inadequate and inconsistent. Considering whether the contributions of the person in the name of the household will increase the value of the house and land, the Judge, when settling the case, needs to carry out the procedures for collecting documents and evidences specified in Article 2 of this Law. 97 Civil Code 2015 to prove the value of real estate – land at the time the house – land transaction is established and at the time of trial; Specifically: How much did the person asking in his/her name pay to buy a house and land? During the time of house and land management, does the person in the name of the household contribute anything to increase the value of the house or land; For example, does the person in the name of the household spend money to repair, renovate and rebuild a house or building on the land? if yes how much? At the same time, conduct on-site appraisal and appraisal of house-land value at the time of trial to determine whether the current house-land value has changed compared to the time of purchase, if so, the change will increase. or depreciate? The collection of the above-mentioned information, documents and evidences is of important and mandatory value in the process of solving the calculation of the effort in preservation, preservation and embellishment to increase the value of land use rights for the person in the name of the household. .

Principles of application of case precedent : Before July 15, 2019 according to Resolution No. 03/2015/NQ-HDTP dated October 29, 2015 and Dispatch 146 of July 11, 2019 of the People’s Court, the case law shall apply. ensure that cases with similar circumstances and legal events must be resolved equally. From July 15, 2019 until now, according to Resolution No. 04/2017/NQ-HDTP dated June 18, 2019, applying precedent must ensure that cases with similar legal situations must be resolved. same.

In this case, the first-instance and appellate courts jointly determined: In the process of buying and selling and managing and using the disputed land and house, the purchase and sale must be attended by the plaintiff and named on the sale and purchase paper. delivery of gold and the recipient of house and land handover. The plaintiff is the person who built the fence around the house-land campus. Defendant only signed for the same plaintiff on the house sale and purchase paper dated 16/02/1998 and then the defendant’s name on the sale and purchase contract No. 2059/HD/MBN dated March 24, 1998, notarized and transfer of land use rights on February 16, 1998, certified at the People’s Committee of Ward X to legalize the previous purchase and sale. After buying a house – the land the defendant and his wife did not manage, but the VA school managed and the defendant handed over all the house purchase and sale documents – the original was handed over to the plaintiff. Mr. PTA does not have his name on the purchase and sale documents and does not participate in the management, only signing the purchase and sale contract as a witness. Therefore, the defendant and Mr. PTA did not have any effort in buying, selling, managing, embellishing to increase the value of real estate. This circumstance in the case is different from Case Law No. 02/2016/AL, so this case precedent is not applied to settle in this case. Therefore, the plaintiff does not have to pay compensation for the effort of managing the land and helping in the purchase and sale of real estate and the adjudication does not accept the defendant’s request.

According to the author, the fact that the 2nd level Court thinks that the circumstances in this case are different (not the same) as case precedent 02, so it is not convincing and incorrect to apply this precedent to settle the case; Because: The house sale and purchase paper dated 16/02/1998 signed between the plaintiff, the defendant and Mr. LHD violated the formal conditions of the house sale and purchase contract and violated the prohibition of the law. The provisions of Resolution No. 1037/2006/NQ-UBTVQU 11 dated July 27, 2006 cannot be applied to recognize the housing title for the plaintiff according to the house purchase certificate dated February 16, 1998 because this housing transaction is established after July 1, 1991. According to the Housing Ordinance in 1991, there is no regulation that overseas Vietnamese are entitled to housing in Vietnam. And according to Article 80 of the 1993 Land Law, the Government decides to lease land to “Vietnamese residing abroad “. Thus, at the time of 1998, the law on housing and land did not stipulate that overseas Vietnamese were entitled to the ownership of houses and residential land in Vietnam. Therefore, the house purchase transaction established under the House Purchase Certificate dated February 16, 1998 between the seller and the plaintiff and the defendant is not protected by law. The fact that the defendant signed the house sale and purchase paper dated February 16, 1998, certified by the People’s Committee of Ward X and the house sale and purchase contract dated March 24, 1998 at the Notary Office makes the house purchase and sale transaction attached to the house. The land use right between the parties becomes legal and this is the basis for granting a certificate of housing ownership and residential land use right in accordance with the provisions of the 2013 Land Law to protect the interests of the homebuyer if Mr. disputes arise. The fact that the defendant handed over the originals of the house-land documents to the plaintiff, the fact that the plaintiff and the defendant both signed the Minutes of handover and receipt of money and received the house on February 17, 1998 did not change the nature of the purchase transaction. voided home sale. Therefore, the 2nd level Court does not count the effort of the defendant spent in performing the transaction and acting in the name of the household in the land purchase contract for the plaintiff, which is not in accordance with the spirit of Case No. 02/2016 dated April 6/ 2016, does not guarantee that the legitimate interests of the defendant are protected by law.

Conclusion . The general principle that when settling civil cases must study comprehensively, objectively, systematically and ensure compliance with the law is the responsibility of each judge assigned to settle. In order to properly apply the law and correctly apply the precedent in the process of settling disputes thoroughly and rationally, and to protect the interests of the subjects, the judge needs to base on the specific circumstances and requirements of each case. within the case to choose which specific content of the case law or the entire content of the case law to apply. The TANDTC needs to continue to develop more case precedents for the above type of dispute, but with a more general and typical character than Case precedent No. 02/2016/AL dated April 6, 2021, which contains the settlement including settlement. recognition of ownership of houses associated with residential land use rights in Vietnam for overseas Vietnamese when asking their names to buy houses and land and ways to deal with contributions made by the person in the name of the household. . Only in this way will the resolution of this type of case ensure consistency and high accuracy.

Source: Court Journal.

 

Post Author: Nguyen Thi Tam