Real estate perspective... An analysis of the scope of compensation fees that can be claimed by the current users of houses expropriated on state-owned land.

Published:

2022-12-05

1. issues raised Housing expropriation is the act of expropriating and compensating the houses legally occupied and used by the expropriated person in accordance with the legal procedures and authority in the public interest. Carrying out the expropriation of houses on state-owned land is an important measure to accelerate the organic renewal of cities and promote the transformation of old cities and infrastructure construction. This work not only makes urban planning more reasonable but also helps to optimize the allocation of land resources. Article 17 of the "Regulations on Expropriation and Compensation of Houses on State-owned Land" and Article 21 of the "Measures for Expropriation and Compensation of Houses on State-owned Land in Jinan City" both stipulate that the subject of compensation for house expropriation is the expropriated person, and the scope of compensation includes (I) compensation for the value of the expropriated houses; (II) compensation for relocation and temporary resettlement caused by house expropriation; (III) compensation for the loss of suspension of production and business caused by house expropriation. In practice, it is very common for the expropriated person of non-residential houses to rent out the house to obtain income. In the case that the expropriated person and the lessee (the current user of the house) have not agreed on the resettlement compensation fee and still cannot reach an agreement at the time of house expropriation, how to allocate the above fees will have an important impact on the rights and interests of both parties. The Regulations on Expropriation and Compensation of Houses on State-owned Land do not have more detailed provisions on this, while the Regulations on Expropriation and Compensation of Houses on State-owned Land do 《<济南市国有土地上房屋征收与补偿办法>Item (II) of Article 31 of the Detailed Rules for Implementation stipulates that "if there is a dispute between the expropriated person and the current user of the expropriated house over the receipt of the relocation fee, temporary resettlement fee, compensation for losses caused by suspension of production or business, and relocation incentive fee, the parties concerned shall settle the dispute through consultation. If the negotiation fails and the current user of the house moves on schedule within the signing period, the house collection department may distribute the relocation fee to the current user, other payments will be temporarily kept by the housing collection department and will be handled according to the agreement after an agreement is reached." In judicial practice, how to judge the above-mentioned disputed fees? This paper intends to analyze the scope of compensation that the current user of the expropriated house can claim based on the lease contract through relevant cases. 2. Related Cases and Referee Views (I) removal fees, equipment removal fees shall be obtained by the actual payer or owner. Case 1: Re-trial of Disputes over Housing Lease Contracts in Chen Ping An and Chen Youxiang (Hubei Higher People's Court [2017] E Min Zai No. 217) Referee's view: on moving compensation. When the government expropriated the house involved in this case, the house was still within the lease term stipulated in the Lease Contract, and the government's expropriation caused the lessee Du Fang to transfer the relevant products and facilities used for the sale and operation of the front room, and thus incur moving expenses. Therefore, the government compensation of the moving compensation fee of 1000 yuan should be owned by Du Fang, the actual payer of the moving expenses. Since the above expenses have been received by Chen Pingan and Chen Youxiang, Chen Pingan and Chen Youxiang should return the moving compensation fee of 1000 yuan to Du Fang. About broadband migration fee, air conditioning migration fee. As a result of the government's expropriation of the housing involved in this case, the broadband and air conditioning in the house need to be relocated to other places and the relocation costs incurred, and the relevant relocation fees compensated by the government should be obtained by the owner of the broadband and air conditioning. According to Article 76 of the "Several Provisions of the Supreme People's Court on Evidence in Civil Proceedings", Du Fang's claim that he should obtain broadband transfer fees and air conditioning transfer fees cannot be established according to law because Du Fang did not submit relevant certificates for the installation of broadband and the purchase of air conditioners in the first, second and retrial. Broadband and air conditioner, as movable property and attachments in the house, shall be recognized as owned by Chen Pingan and Chen Youxiang, the owners of the house according to law. The broadband transfer fee of 360 yuan and the air conditioner transfer fee of 200 yuan compensated by the government shall be obtained by Chen Pingan and Chen Youxiang. The object of compensation for (II) temporary placement fee exists on the part of the expropriated or lessee and on the part of both parties to share three views of the decision. Case 2 (to the expropriated person): Zhang Fuyi, Yan Chengfang and other housing lease contract disputes (Xuzhou Intermediate People's Court of Jiangsu Province [2018] Su 03 Min Zhong No. 2234) Referee's point of view: with regard to the compensation fee of 43236 yuan for temporary resettlement advocated by Zhang Fuyi, Article 22 of the regulations on Housing expropriation and compensation on State-owned Land stipulates: "if the relocation is caused by the expropriation of houses, the housing expropriation department shall pay the relocation fee to the expropriated person; if the property right exchange is chosen, the housing expropriation department shall pay the expropriated person a temporary resettlement fee or provide a revolving house." Accordingly, the temporary resettlement compensation fee is a fee paid by the housing expropriation department to the expropriated person who chooses to exchange the property rights of the house. The fee has nothing to do with the lease behavior, and the lessee is not entitled to compensation for the fee. Therefore, the court does not support Zhang Fuyi's request. In the second instance of this case, the court held that the temporary resettlement compensation fee was the resettlement fee that should be obtained because the expropriated person chose to exchange property rights. Zhang Fuyi has applied for Yan Chengfang and Jiang Qing to refund the rent. Yan Chengfang and Jiang Qing no longer have the obligation to provide resettlement places. Zhang Fuyi's claim has no contractual and legal basis. Case 3 (owned by the lessee): Guangdong Yuchen Paint Co., Ltd. and Liang Lihua Housing Lease Contract Dispute (Guangdong Foshan Intermediate People's Court [2021] Yue 06 Min Zhong No. 7793) Referee's view: On the temporary placement fee. As Liang Lihua has obtained compensation for the right to use the land, his loss has been compensated to some extent. In this case, the compensation for the temporary resettlement fee given by the government demolition department is based on the fact that Yuchen Company is still operating on the demolished land at the time of the assessment on September 1, 2019, and the loss caused by the demolition can not continue to operate. The object of the compensation is the actual business entity, namely Yuchen Company, not Liang Lihua. Therefore, even if the lease term of Yuchen Company has expired when it actually moved out, Yuchen Company still has the right to request a temporary resettlement fee of 249495.48 yuan, which is supported by our hospital. Case 4 (shared by both parties): Ding Mingjun, Meng Xiangfeng and other housing lease contract disputes (Jinan Intermediate People's Court of Shandong Province [2022] Lu 01 Min Zhong No. 5473) Referee's view: On the temporary placement fee. According to the statement of the collection center, "the temporary resettlement fee is to make up for the cost of temporary transitional resettlement required by the housing owner for demolition". In this case, after the demolition of the house involved, the owner of the house and the actual user have the need for turnover resettlement during the transition period, resulting in the corresponding temporary resettlement expenses, so the owner of the house and the actual user should be compensated for the temporary resettlement fee. The court of first instance determined that the temporary resettlement fee was only compensated to Jiang Yakun, the actual user of the house, and did not fully consider the loss of resettlement expenses incurred by the house owner due to demolition, and the court corrected it. Considering the above situation in this case, the court supports Jiang Yakun, the actual user of the house, Ding Mingjun and Meng Xiangfeng, the owners of the house, to enjoy 50% of the temporary resettlement fee for the house involved. If the (III) parties do not agree or the agreement is unclear on the loss of production and suspension of business, it shall be determined on the basis of the term of the lease and the actual loss. Case 5: Dispute over Housing Lease Contracts between Dongying Wantai Petroleum Equipment Co., Ltd. and Xia Wei (Shandong Dongying Intermediate People's Court (2022) Lu 05 Min Zhong No. 1285) Referee's view: On the issue of loss of production and closure. The Court believes that because the lease term of the house involved has not yet expired, the demolition of the house will not allow Xia Wei to continue to operate, but also cause Wantai Company to be unable to collect the rent for the remaining lease term of the house involved, so Wantai Company also has a loss of suspension of production and business. The first-instance judgment decided that it was not improper for Xia Wei and Wantai to enjoy 50% of the compensation for this part of the loss. The premise of obtaining compensation for (IV) decoration expenses is that the behavior is approved by the lessor and the compensation amount shall not exceed the decoration compensation range determined in the relocation compensation. Case 6: Case of Retrial Review and Trial Supervision of Lease Contract Dispute between Guo Mou and Shanxi Guangjuyuan Coal Washing Co., Ltd. (Shanxi Higher People's Court [2020] Jin Minshen No. 450) Referee's point of view: on the decoration of the plant involved in the case. Guo signed a plant lease agreement with Guangjuyuan Company. The two parties did not agree on the decoration of the leased plant in the plant lease agreement, and the two parties did not reach an agreement afterwards. Therefore, how to deal with the renovation and loss of the plant involved should be handled in accordance with the provisions of the law and relevant judicial interpretations. In the counter-complaint, Guo admitted that Guangjuyuan Company hindered its renovation, and Guo did not submit evidence to prove that Guangjuyuan Company agreed to renovate the plant involved. According to the second paragraph of Article 223 of the the People's Republic of China Contract Law and Article 13 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Laws in the Trial of Disputes over Urban Housing Lease Contracts, the lessee shall bear the expenses incurred in the decoration of the leased property without the consent of the lessor. Guo Mou did not obtain the consent of Guangjuyuan Company for the decoration of the plant involved, it shall be at its own expense. Case 7: Qingdao xingda automobile sales co., ltd., Qingdao dahong special vehicle manufacturing co., ltd. and other housing lease contract disputes (Qingdao intermediate people's court of Shandong province [2022] Lu 02 min zong no 6004) Referee's point of view: Xingda Company sued Dahong Company to compensate for its decoration losses, but the loss was not caused by Dahong Company. The reason why Xingda Company could not continue to occupy and use the house involved was that the house was recovered by the government and was not subject to the subjective will of Dahong Company. Both parties clearly agreed not to bear any liability for breach of contract under such circumstances. Xingda Company can only obtain the corresponding compensation for the decoration part. Therefore, if Dahong Company is ordered to compensate for the decoration of Xingda Company beyond the scope of decoration compensation determined in the relocation compensation, it is against the principle of fairness and has no contract basis. Therefore, the court believes that it is not improper to determine the decoration loss claimed by xingda company in the first instance based on the (2020) green and yellow real estate appraisal report No. 2XXX property appraisal report made by Qingdao best land real estate appraisal consulting co., ltd. 3. Summary 1, on the collection of housing value, relocation fees and equipment relocation fees compensation subject is relatively clear. In practice, the value of the expropriated house mainly refers to the demolition compensation of the expropriated house and its appendages, which is obtained by the expropriated person, I .e. the owner of the house, and the lessee has no objection. The payment object of the relocation fee and the equipment relocation fee should be the actual payer of the relocation fee and the owner of the relocation equipment, respectively. 2. Regarding the temporary resettlement fee, the referee has different opinions in practice. The author prefers that the fee should be shared by both parties without clear agreement. There are two reasons: first, the second paragraph of Article 31 of the regulations on the Administration of Urban Housing demolition issued by the State Council stipulates: "during the transitional period, if the person to be demolished or the lessee arranges his own accommodation, the demolisher shall pay the temporary resettlement subsidy; if the demolished person or the house lessee uses the revolving house provided by the demolition person, the demolition person shall not pay the temporary resettlement subsidy." Although the regulation has been abolished, it clearly stipulates that the housing lessee is also the subsidy object of the temporary resettlement fee, which has certain guiding significance. Secondly, although Article 22 of the regulations on Housing expropriation and compensation on State-owned Land stipulates that if the house property right exchange is chosen, the housing expropriation department shall pay the expropriated person a temporary resettlement fee or provide a revolving house before the house is delivered. This is mainly because the compensation agreement is signed between the housing expropriation department and the expropriated person, and the fee should be paid to the expropriated person according to the relativity of the contract. However, it does not mean that there is no need for temporary resettlement after relocation due to demolition during the normal production and operation of the lessee (current user of the house) during the lease period. If the lessee has no right to claim the full compensation to the expropriated person, the time cost and additional expenses incurred by the lessee in finding a separate place for resettlement shall be borne by the lessee, which is detrimental to its legitimate rights and interests. 3. With regard to the loss of suspension of production and business, in the absence of an agreement between the two parties, it should not be limited to the compensation object stipulated in the demolition policy, but should be based on the actual losses caused by the demolition to both parties to the lease contract, combined with the remaining lease term, The actual business investment situation, the subject of business license and license rights and other factors shall be reasonably distributed. 4. With regard to the decoration expenses, the lessee claims to be compensated for the decoration expenses on the premise that the decoration and decoration behavior has been approved by the lessor in advance, and the amount of compensation shall not exceed the scope of decoration compensation determined in the relocation compensation. In addition, it should be noted that if the lessee's decoration is necessary for the production and operation of the industry, the above expenses can be appropriately compensated even without the consent of the lessor. 4. Risk Alert When leasing houses on state-owned land, the lessee shall clearly stipulate in the lease contract the rights and obligations of both parties after the expropriation, and try to avoid disputes over the distribution of compensation due to lack of agreement or unclear agreement. Secondly, during the lease period, the lessee should pay attention to the retention of raw materials, facilities and equipment purchase documents and production and operation related data, which is an important basis for claiming the loss of shutdown and relocation costs. Finally, at the time of expropriation, the lessee should actively communicate with the lessor and the housing expropriation department to understand the expropriation compensation policy and the progress of expropriation, and if the lessor deliberately fails to inform the resettlement compensation situation or is unable to obtain compensation fees from the lessor through negotiation, it can take litigation to safeguard its legitimate rights and interests.</济南市国有土地上房屋征收与补偿办法>

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