Question: In 2020, Mr. A passed away, leaving the estate as the right to use 145m2 of land, which was given to him by his parents separately during his marriage. Mr. A has been divorced from his wife since 1997. Mr. A’s parents are both deceased. Mr. A has a child, Ms. B. After A’s death, Ms. B carried out the procedures to declare the inheritance, but was prevented by Ms. C because she assumed that this land had been transferred to Ms. C. Now Ms. C is also occupying the above land for private use. There was a dispute between the two parties. What should Ms. B do to protect her rights?
Legal Opinion:
The dispute between Ms. B and Ms. C is a land dispute, so it must go through the reconciliation procedure before filing a lawsuit.
In case of unsuccessful conciliation, Ms. B has the right to initiate a lawsuit to the competent People’s Court to request the Court to settle. The issues the Court may be consider and the involved parties need to prove are as follows:
Firstly, about Ms B’s inheritance rights to the disputed land area:
- Prove that the origin of the land use right is owned by Mr. A (through the certificate of land use rights or dossiers of equivalent value). Mr. A was given separately, so this is the private property of Mr. A, but not the common property of husband and wife.
- Prove that Ms. B is the sole heir of Mr. A, so she has the right to inherit the above estate.
Legal basis:
Article 613, Article 614, Article 651.1.a Civil Code 2015:
“Article 613. Heirs
If an heir is an individual, such person must be alive at the time of commencement of the inheritance or, if such person is born and alive after the commencement of inheritance, must have been conceived prior to the time when the deceased dies.
Article 614. Time when rights and obligations of heirs arise
From the time of commencement of an inheritance, the heirs have the property rights and obligations left by the deceased.
Article 651. Heirs at law
- Heirs at law are categorized in the following order of priority:
- a) The first level of heirs comprises: spouses, biological parents, adoptive parents, offspring and adopted children of the deceased;”
Secondly, about the legality of documents, papers provided by Ms. C to prove that this land use right has been transferred to Ms. C (if any).
In case Ms. B is Mr. A’s sole heir, and Ms. C fails to prove the legitimacy of the transfer transaction that is said to have been established between Mr. A and Ms. C (Ms. B has no right to the disputed land area), Ms. C is considered to be possessing the property without any legal basis, according to which Ms. B has the right to initiate a lawsuit to the Court to reclaim the above land use right, based on Articles 165 and 166 of the Civil Law 2015:
“Article 165. Possession with a legal basis
- Possession with a legal basis is the possession of a property in any of the following cases:
- a) The owner possesses the property;
- b) A person is authorized by the owner to manage the property;
- c) A person to whom the right to possession has been transferred through a civil transaction in accordance with the provisions of law;
- d) A person who discovers and keeps derelict property, property with unidentified owners, property which has been let drop on the ground, left over out of inadvertence, buried or sunken in accordance with this Code and/or relevant laws.
- dd) A person who discovers and keeps stray domestic animals, poultry or raised aquatic animals in accordance with this Code and/or relevant laws;
- e) Other cases as prescribed by law.
- A possession of property which does not comply with the provisions of Clause 1 of this
- Article is a possession without a legal basis.
Article 166. The right to reclaim property
- Owners and/or holders of other property-related rights shall have the right to request the persons possessing, using or receiving benefits from the property without a legal basis to return such property.
- The owner of a property has no right to reclaim such property that is in the possession of a holder of other property-related rights.”
