Viewpoint... An empirical analysis of the ownership of property rights in supporting kindergartens in urban and rural residential areas.

Published:

2022-12-05

In order to establish and improve the guarantee mechanism for the planning, construction, management and use of supporting kindergartens in urban and rural residential areas, expand preschool education resources, and increase the popularization rate of preschool education, the State Council issued the ''Notice of the General Office of the State Council on Carrying out the Governance of Supporting Kindergartens in Urban Communities'' in 2019. Under the premise of strictly following the "the People's Republic of China Urban and Rural Planning Law" and "Urban Residential Area Planning and Design Standards, for the transformation of old urban areas (shantytowns), the development of new cities and the construction of residential areas, and the relocation of poverty alleviation and relocation, the supporting construction of kindergartens should be included in the public management and public service facilities construction planning. In the process of policy promotion, the property rights dispute of supporting kindergartens in urban and rural residential areas is a big problem. Therefore, in judicial practice, there are many disputes among the government, owners and developers on the ownership of the property rights of supporting kindergartens, which will be discussed one by one in this paper. 1. Status of Property Rights Transfer of Supporting Kindergartens in Urban and Rural Residential Areas in China According to Article 3, Item 2 of the "Notice of the General Office of the State Council on Carrying out the Management of Supporting Kindergartens in Urban Communities", rectification should be carried out one by one in accordance with the requirements of "one matter, one discussion" and "one garden, one case", and recycling, replacement, Purchase and other methods. After inquiring about the relevant regulations issued by various provinces and cities, this paper finds that the transfer of supporting kindergartens in residential areas is roughly divided into the following three situations: (I) transfer without compensation 1. The land transfer contract stipulates the transfer obligation of the construction subject and the ownership of property rights to the education administrative department, the government will offset the construction cost of the supporting kindergarten in the land transfer fee, and the construction subject will be transferred to the government after the completion of the supporting kindergarten. 2. If there is no relevant agreement in the land transfer contract, the construction subject is encouraged to hand over free of charge, and the construction area of the supporting kindergarten in the community is not included in the plot ratio accounting of the land to be supplied. 3. Although the land transfer contract does not stipulate that it must be transferred free of charge, the supporting kindergartens that belong to the construction of state-owned enterprises must be transferred free of charge. 4. Supporting kindergartens built on the allocated land shall be handed over free of charge after completion. (II) Paid Repurchase 1. There is no relevant agreement in the land transfer contract, and the supporting kindergartens built by the construction subject shall be repurchased by the government with compensation. For repurchase criteria, some provinces provide for reference to the results of land acquisition costs and construction costs audits. two.. The measures for the recovery and compensation of supporting kindergartens in urban and rural residential areas where the property rights belong to development and construction units and individuals shall be determined by the governments of various cities and counties (districts) in accordance with the local actual situation in accordance with the law and regulations. (III) determine whether handover is necessary after considering the actual situation Some provinces and municipalities make exceptions in view of special circumstances and do not necessarily require transfer (including the above-mentioned paid or free transfer). Shenyang City stipulated in the "Opinions on Strengthening the Construction and Management of Supporting Kindergartens in Urban Residential Communities in Our City": "For supporting kindergartens that have been used, if the land is supplied according to the allocation method, it shall be cleaned up in accordance with relevant policies, and the property rights unit, organizer or individual The supporting kindergartens in use are transferred to the local education department for management and use; the supporting kindergartens whose property rights have been privately owned shall not be used for other purposes." Nanchang City stipulates in the "Administrative Measures for the Planning, Construction and Use of Supporting Kindergartens in Urban Residential Districts in Nanchang City": "Before the implementation of these Measures, it was not agreed in the land transfer contract that the supporting kindergartens will be handed over to the government free of charge. Based on the principle of active, stable and differentiated treatment, the county (district) government adopts various methods to gradually clean up and recover within 2 years from the implementation of these Measures. Supporting kindergartens in residential communities whose property rights have been privately owned shall not be converted to other uses, and those that have been converted to other uses shall be rectified within a time limit within 6 months." The above-mentioned provisions, combined with the actual situation of supporting kindergartens in urban and rural residential areas, objectively confirm that the property rights of supporting kindergartens are not always transferred to government departments, but should be determined in combination with the land acquisition method, investment subject, construction cost allocation and other comprehensive factors of supporting kindergartens. If the property right has been privately owned, it is only required not to be used for other purposes. Cases 2. the Ownership of the Property Rights of Supporting Kindergartens in Urban and Rural Residential Areas and the Main Principles of the Referee The previous article describes the relevant policies of some provinces and cities in China on the transfer of property rights of supporting kindergartens in urban and rural residential areas. If the situation that needs to be transferred to the government free of charge is excluded, whether the property rights of supporting kindergartens are owned by developers or by all owners is currently not clearly stipulated in relevant laws and regulations in China. Therefore, there are different debates in judicial practice, and the judgments of the courts on the ownership of kindergartens in urban and rural residential areas are also different. (I) supports the case that the property right of the supporting kindergarten is owned by the developer. 1.(2016) Wan 01 Min Zhong No. 2278 Civil Judgment Summary of the decision: The court held that the kindergarten planned in the community involved in the case was independent in construction, could be used exclusively, and could be registered as the object of ownership of a particular subject. Therefore, the above-mentioned kindergarten belongs to the exclusive part of the "the People's Republic of China Property Law", and because the developer has agreed in the housing sales contract signed with the buyer that the above-mentioned housing construction not included in the allocation belongs to the seller, so the above-mentioned supporting kindergarten belongs to the developer. 2.(2017) Su 03 Min Zhong No. 1026 Civil Judgment The main point of the judgment: The court held that the kindergarten house involved in the case is not shared by all the owners of the community. The reasons are as follows: First, the kindergarten involved in the case does not belong to the legal common part. Article 73 of the the People's Republic of China Property Law stipulates: "The roads in the building area, It belongs to the owners, except for those that belong to urban public roads. The green space within the building division belongs to the owners, except for those that belong to the urban public green space or that expressly belong to individuals. Other public places, public facilities and property service houses within the building area belong to the owners." The planned use of the kindergarten involved in the case is a kindergarten. The kindergarten is a single building in the community. It has structural independence and utilization independence. It conforms to the characteristics of the exclusive part and is a legal exclusive part. Second, both parties agree that the kindergarten involved in the case is a public kindergarten, and it is not a public kindergarten that should be transferred to the education department according to national or local regulations. Third, the kindergarten involved in the case is not a common part of the agreement; fourth, the community industry committee involved in the case recognized the kindergarten housing department developer investment and construction, but did not provide sufficient evidence to prove that the cost of the kindergarten involved in the case was eventually spread into the development and construction costs of commercial housing, and constitute a component of the external sales price of commercial housing. And although the sales price of commercial housing is related to the development cost, it is not the decisive factor. The price of commercial housing is related to many factors such as the real estate market environment, the district location, and the developer's business model. Whether the construction cost of the kindergarten is amortized into the development cost of the community does not necessarily lead to changes in the sales price of commercial housing. To sum up, the court rejected the claims of the community industry committee. 3.(2017) Wan 05 Line Final 94 Administrative Judgment Summary of the judgment: the court held that according to the "the People's Republic of China Construction Project Planning permit" issued by the developer and the local county construction bureau, the certificate of unshared area, the description of the cost of separate accounting for kindergarten costs and other evidence materials, it is proved that the kindergarten involved in the case is a commercial house that is independently planned, independently constructed and exclusively usable, and should be recognized as the exclusive part stipulated in the the People's Republic of China property Law. In addition, the local county construction bureau required in the "Planning and Design Conditions" that "the community should consider setting up kindergartens, residents' fitness activity spaces or places, property management and security facilities, etc.", and did not specify that supporting kindergartens are public facilities or public places. Therefore, the appellant's appeal reason that the kindergarten should belong to the public facilities or public places in the community is not supported. Through the above cases, it can be seen that the court tends to have the property right of supporting kindergartens in urban and rural residential areas owned by developers. The argument mainly includes the following three aspects: first, supporting kindergartens in urban and rural residential areas are independent in construction, can be used exclusively, and can be registered as the object of ownership of specific owners, and it has been agreed in the housing sales contract that the housing buildings not included in the kindergarten shall be owned by developers. Second, whether the construction cost of the supporting kindergarten is amortized into the overall construction cost of the community; Third, the developer provides evidence such as proof that the kindergarten area is not apportioned and the cost is accounted for separately, proving that the supporting kindergarten is a commercial house that is independently planned, independently constructed and can be used exclusively. The (II) supports the case that the property right of the supporting kindergarten is shared by all the owners. 1.(2020) Wan 0102 Min Chu No. 7456 Civil Judgment Summary of the judgment: The court held that the community involved in the case was developed and constructed by Zhongxiang Company. According to Article 73 of the the People's Republic of China Property Law, other public places, public facilities and property service houses within the building area belong to the owners. The kindergarten in the community involved in the case belongs to the community supporting facilities, and its ownership shall be owned by all owners. 2.(2016) Lu 16 min zong No. 220 civil judgment Summary of the judgment: the court held that the developer and the owner signed a house purchase contract, but there was no agreement on the ownership of the supporting kindergarten. According to the planning and design drawings and functions of the community involved in the case, it can be determined that the supporting kindergarten is a single building independent of other buildings, and there is no separate "Land Use Certificate", "Construction Land Permit", "Construction Permit" and other related procedures. After completion, it has not been accepted by relevant departments. The developer cannot provide sufficient evidence to prove that it has separately accounted for the "investment" of the supporting kindergarten when developing the community, and should bear the legal consequences of the inability to provide evidence. 3.(2016) Lu 17 Min Zhong No. 1735 Civil Judgment Summary of the judgment: The court held that the reasons why the ownership of the kindergarten house involved in the case belongs to the owner are as follows: First, the commercial housing sales contract signed between the developer and the owner of the community involved in the case did not stipulate the ownership of the house occupied by the supporting kindergarten, and the above-mentioned house has not yet For the property right certificate, the developer cannot provide evidence that the property right of the house belongs to it; second, the planning drawing of the planning department of the Development Business Daily shows that the district planning includes kindergartens. Third, the developer cannot provide evidence to prove that it will separately account for the "contribution" of the houses occupied by the kindergarten when developing and constructing the residential area involved. Fourth, the developer claimed that the supporting facilities include kindergartens in the development case and in the publicity, so that the owner can obtain reasonable trust in the corresponding supporting facilities by purchasing the proprietary parts. To sum up, the supporting kindergartens involved in the case should be shared by all owners. Through the above cases, it can be seen that the court tends to share the property rights of supporting kindergartens in urban and rural residential areas. The argument mainly includes the following four aspects: first, whether the ownership of kindergartens in urban and rural residential areas is agreed in the commercial housing sales contract, and whether the planning drawings show that the district planning includes kindergartens; Second, whether the area of supporting kindergartens has been shared and borne by the owners when purchasing houses; Third, whether the construction cost of supporting kindergartens is included in the development cost of commercial housing and constitutes an integral part of the housing price; fourth, whether the developer advertises the kindergarten as a public supporting facility in the community in the sales publicity materials, resulting in reasonable trust of buyers. Legal Analysis on the Ownership of the Property Rights of Supporting Kindergartens in Urban and Rural Residential Areas in 3. Whether it is the previous "the People's Republic of China Property Law" or the current "the People's Republic of China Civil Code", there are no clear regulations on the property rights of supporting kindergartens in urban and rural residential areas. However, through the previous case analysis, it can be seen that the court's judgment of the ownership of the property rights of supporting kindergartens in urban and rural residential areas can be roughly divided into the following two views. Supporting kindergartens in urban and rural residential areas of (I) are structurally independent In judicial practice, if it is considered that the supporting kindergarten in urban and rural residential areas is structurally independent, the supporting kindergarten conforms to the "Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Cases of Distinguishing Ownership of Buildings" Secondary specialized school has some characteristics. Based on the principle of autonomy between the parties to the contract, the court will give priority to respecting the agreement between the two parties to the contract when judging the ownership of the kindergarten property. When the two parties to the contract have no agreement or the agreement is unclear, the developer is required to show relevant evidence in the planning, construction process and subsequent sales process, such as district planning drawings, kindergarten area unallocated certificate, cost separate cost accounting cost description and sales publicity materials, etc, it is used to prove that it has a property right to the kindergarten, otherwise it shall bear the adverse consequences. The supporting kindergartens in urban and rural residential areas in (II) are not structurally independent. If it is considered that the supporting kindergartens in urban and rural residential areas are not structurally independent, they are regarded as public places or public facilities in the community. According to Article 274 of the the People's Republic of China Civil Code: "... other public places within the building area, public facilities and property service houses belong to the owners." The kindergarten should be shared by all owners. The court should focus on the non-independence of the supporting kindergarten to balance the interests of both parties. 4. epilogue It can be seen that after the "Notice of the General Office of the State Council on Carrying out the Governance of Supporting Kindergartens in Urban Communities" was issued, in response to the document, "The completed supporting kindergartens in the community should be handed over to the local education administrative department in a timely manner in accordance with the regulations, and those that have not been handed over to the local education administrative department should be completed within a time limit, and effective measures should be taken to recover those that have been diverted for other purposes." Many local governments have successively issued management measures to provide for the transfer of property rights of supporting kindergartens in urban and rural residential areas. However, the scope of property rights transfer does not cover all supporting kindergartens in urban and rural residential areas. Some local governments still allow supporting kindergartens to be privately owned, provided that they are not used for other purposes. In judicial practice, there are also great differences in the judgments of local courts on the ownership of property rights of kindergartens in urban and rural residential areas. It can be seen that the current legal provisions on the ownership of supporting kindergartens in China are not perfect. In order to better establish and improve the urban and rural residential areas supporting kindergarten planning and construction and management of the use of security mechanisms, the expansion of pre-school education resources, improve pre-school

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