[FREE LEGAL ADVICE]

QUESTION:
Yes, hello brothers and sisters. I have a little thing that I would like to ask you to help me understand clearly about the law of the land. I sincerely thank you. I really hope that the admin will approve the post and get help from you guys

My house and my uncle have a common path, the path is next to the yard of my uncle's house. Before, my house didn't ask for a path, my family often went through my uncle's yard, now there's a little thing about my family that I want to go the way that I am allowed to use, but not hitchhiked to your house (shared path when my house is not ready). If you ask, it is considered your yard). The gate of my uncle's house belongs to the common path, blocking the common path. My uncle said that before making the red book, the gate was already there, and no one has the right to break the gate. Now, my family wants to be asked to knock down the gate to return the land of the common path, is that correct? I look forward to helping you. I thank you.

ANSWER:
Hi, thank you for sending a question to MEDLAW, because the information you provided is incomplete, so Medlaw does not have enough grounds to advise you correctly. However, your case can refer to the following regulations:

Based on the information you've provided, you need to determine who this public walkway belongs to. Based on the land use certificate, ownership of houses and other assets attached to the land to determine whether it belongs to you or your uncle's house.

If it belongs to your uncle's house, according to Clause 1, Article 254 of the Civil Code 2015, in case your house is surrounded by your uncle's house without or enough access to the public road, you have the right to ask your uncle to spend a give themselves a reasonable path on their land. The location, length, width and height limits of the aisles shall be agreed upon by the parties, ensuring convenience for travel and less trouble for the parties; if there is a dispute over the way, they have the right to request the court or other competent state agency to determine.

If it belongs to your house, you can negotiate with your uncle's house to return the land to you.

In both cases above, if you cannot negotiate with your uncle's house, you can send an application to the People's Committee of the commune where the disputed land is located for mediation and it will be resolved within 45 days. from the date of receipt of the application.
In case the Commune People's Committee fails to conciliate, you can initiate a lawsuit at the district-level People's Court where the land is located to settle the dispute over the common path.

Specifically, the legal basis for your case is as follows:

– According to Article 254 of the Civil Code 2015 on the right of passage:
1. Owners whose immovable property is surrounded by the properties of other owners without or with insufficient access to the public road, has the right to request that the owner of the enclosed immovable property for themselves a reasonable path on their land.
Walkway is opened on any adjoining property that is deemed most convenient and reasonable, taking into account the specifics of the site, the interests of the encumbered property, and the minimal damage caused. for real estate with open access.
The owner of the immovable property entitled to the right of passage must compensate the owner of the immovable property entitled to the right of passage, unless otherwise agreed.
2. The location, length, width and height limits of the aisles shall be agreed upon by the parties, ensuring convenience for travel and less trouble for the parties; if there is a dispute over the way, they have the right to request the court or other competent state agency to determine.
3. In case the immovable property is divided into several parts for different owners or users, the necessary passages must be reserved for the people inside as prescribed in Clause 2 of this Article without compensation.

– According to Clauses 1, 2, 3, Article 202 of the 2012 Land Law on mediation of land disputes:
1. The State encourages the parties to land disputes to self-mediate or settle land disputes through grassroots conciliation.
2. Land disputes that the disputing parties cannot conciliate shall send an application to the commune-level People's Committee of the locality where the disputed land is located for conciliation.
3. Commune-level People's Committee presidents shall have to organize the conciliation of land disputes in their respective localities; in the course of implementation, must coordinate with the commune-level Vietnam Fatherland Front Committee, member organizations of the Front and other social organizations. Procedures for conciliation of land disputes at commune-level People's Committees shall be carried out within 45 days from the date of receipt of a written request for settlement of land disputes.

– According to Clause 1, Article 203 of the 2012 Land Law on the authority to settle land disputes:
Land disputes that have been unsuccessfully conciliated at the commune-level People's Committees shall be settled as follows:
1. Land disputes in which the involved parties have a Certificate or one of the papers specified in Article 100 of this Law and the dispute over property on land shall be settled by the People's Court;

– According to Clause 16, Article 3 of the 2013 Land Law:
16. A certificate of land use rights and ownership of houses and other land-attached assets is a legal document for the State to certify land use rights and ownership of houses and other assets attached to land. lawful land of the holder of land use rights, house ownership and ownership of other land-attached assets.

The content of our consultation is based on the information provided by the Client, is for reference only and based on the legal provisions in force at the time of consultation. In case you ever need detailed consultation, please contact us directly for specific advice.

In case you ever need detailed consultation, please contact us directly for specific advice.

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