Zhongcheng Qingtai, real estate perspective: homestead on the validity of the contract of sale and purchase of housing rules analysis.

Published:

2022-05-09

1. Introduction The homestead is the collective construction land acquired by the villagers based on the membership of the collective economic organization and used for the construction of houses and their ancillary facilities. Its ownership belongs to the village collective, and the villagers only enjoy the right to use it, which has the nature of social welfare. Based on the principle of "integration of real estate", the houses built by villagers after obtaining the homestead also have social security functions. At present, affected by many factors, the phenomenon of urban residents buying houses on rural homestead occurs from time to time. Can houses on rural homesteads be bought and sold? What is the validity of the sale contract? What kind of legal risks are there? This paper will analyze the case and the referee's point of view. 2. Cases and Referee's Point of View (I) there are no major legal obstacles to the sale of homestead houses between members of the same collective economic organization, it is also recognized in judicial practice. Case: Wu Shihuang and Ding Yongzhong Dispute over Rural Housing Sales Contract (Taizhou Intermediate People's Court of Zhejiang Province [2020] Zhejiang 10 Min Zhong No. 1242) The court held that the focus of the dispute in this case is whether the deed of sale signed by Ding Yongzhong and Wu Shihuang on February 15, 1995 is valid. According to the current law, the homestead is collectively owned by farmers, and the owner of the right to use the homestead only has the right to possess and use the homestead. In principle, the owner of the right to use the homestead can only use the homestead to build houses and ancillary facilities for their residential use. If non-members of the collective economic organization are allowed to obtain the right to use the homestead, it will essentially constitute an obstacle to the collective's exercise of ownership on the homestead. However, the performance of the contract will not lead to the transfer of the right to use the homestead outside the collective economic organization, which does not affect the collective land ownership enjoyed by the collective economic organization. Therefore, there are no major legal obstacles to the sale of homestead houses among the members of the same collective economic organization, It is also recognized in judicial practice. Therefore, the key to the validity of the deed of sale is whether the subject of the deed of sale is a member of the same collective economic organization. At the time of signing the agreement, Wu Shihuang and his wife Sun Caiqin were married. Wu Shihuang's purchase of the homestead belonged to the joint property of his husband and wife with Sun Caiqin. After the purchase, he built a house on the homestead. Wu Shihuang and Sun Caiqin also lived in the house together, that is, the rights obtained also belonged to Wu Shihuang and Sun Caiqin. Although Wu Shihuang and Ding Yongzhong are not members of the same collective economic organization, Sun Caiqin and Ding Yongzhong are members of the same collective economic organization and are qualified to purchase and enjoy the right to use the homestead involved in the case. Therefore, the deed of sale involved in the case should be determined to have occurred between members of the same collective economic organization. The deed of sale involved in the case does not violate the current land management laws and regulations of our country and should not be deemed invalid. In other words, the house involved in the case has been transferred to Sun Ruzhi. Sun Ruzhi is a member of the collective economic organization where the house is located and has the conditions to own the right to use the homestead. The house still belongs to the members of the village collective economic organization in the end. The transfer of the homestead involved in the case actually no longer violates the relevant interests of the village collective, nor does it violate the current land management laws and regulations of our country, the Court does not support Ding Yongzhong's claim to confirm that the deed of sale signed with Wu Shihuang is invalid. (II) urban residents are strictly prohibited from buying rural houses on homesteads. The sales contract involved in the case is invalid because it violates the mandatory provisions of the law and national policy on the circulation of the right to use rural homestead. Case: Zhang Meiping and Xu Hongbo's Re-trial of Disputes over Rural Housing Sales Contracts (Shandong Higher People's Court [2020] Lu Min Zai No. 190) The Court held that the focus of the retrial of this case was: 2. Whether the "house sale agreement" involved in the case is invalid. On the question of whether the "House Sale Agreement" signed by the two parties involved on February 28, 2002 is invalid. After the complainants Zhang Meiping and Xu Hongbo signed the above agreement with the complainants Yang Kun and Wang Xiaobo, the rural homestead, houses and related certificates registered in Xu Hongbo's name were delivered to Yang Kun and Wang Xiaobo for residential use, while the complainants Yang Kun and Wang Xiaobo were both urban registered permanent residence and were not members of the collective economic organization of the village where the houses involved were located. The "the People's Republic of China Land Management Law" and related laws and regulations and national policies make strict restrictions on the transfer of the right to use rural homesteads. The purpose is to prohibit the transfer of the right to use rural homesteads outside collective economic organizations to protect collective organizations. The interests of members. When the "the People's Republic of China Land Administration Law" was revised in 1998, the original 41 provisions on the use of collective land for urban non-agricultural household registration were deleted. When it was revised in 2004, Article 63 stipulated that "the right to use land collectively owned by farmers shall not be transferred, transferred or leased for non-agricultural construction"; At the national policy level, on May 6, 1999, the General Office of the State Council issued the "Notice on Strengthening the Management of Land Transfer and Prohibiting Land Speculation" (Guo Ban Fa [1999] No. 39), Article 2, paragraph 2, which stipulates that "farmers' houses shall not be sold to urban residents, nor shall urban residents be approved to occupy farmers' collective land to build houses, and relevant departments shall not issue land use certificates and property certificates for houses built and purchased illegally", decision of the State Council on Deepening Reform and Strict Land Management (No. 28 [2004] of the State Council) and Issued by the Ministry of Land and Resources<关于加强农村宅基地管理的意见>The notice (land resources issued [2004] 234) and other normative documents are clearly prohibited for urban residents to buy rural houses on the homestead. Therefore, the "Housing Sale Agreement" involved in the case violated the mandatory provisions of laws and national policies on the transfer of rural homestead use rights, and the housing sales involved in the case should be determined to be invalid. If the (III) is approved by the authority with the power of approval and approved by the local collective economic organization, and the contract has been performed without harming the collective and social public interests, it can be deemed valid. Case: Jiang Kaikui and Huang Yongcai Confirmed Invalidation of Contract (Linyi Intermediate People's Court of Shandong Province [2018] Lu 13 Min Zhong No. 8891) The court held that in this case, Jiang Kaikui and Huang Yongcai signed a house purchase and sale agreement in May 2009 and paid the purchase price on the same day. On May 6, 2009, both parties jointly signed a house purchase and sale contract (red and white deeds) in the Real Estate Bureau and delivered the house on the same day. On May 15, 2009 and May 15, 2009, Jiang Kaikui assisted Huang Yongcai in handling the change registration procedures of the house involved in Feixian Real Estate Management Bureau, feixian Real Estate Administration registered the change of the house involved in the case in Huang Yongcai's name, and issued Huang Yongcai the certificate of house ownership S0 × 87. The act of buying and selling houses has been approved by the authority with the right of approval and approved by the local collective economic organization, and the house sale contract has been fulfilled, and the sale has not harmed the collective and social public interests. Therefore, the house sale contract between the two parties in this case is the true intention of both parties, and there is no situation stipulated in Article 52 of the the People's Republic of China Contract Law, which should be deemed valid according to law. (IV) the house is finally purchased by the members of the collective economic organization of the village after the circulation and has been fulfilled, it means that the right to use the homestead has been restored to the scope permitted by laws and regulations, that is, the illegality of the first-hand house buying and selling has been eliminated and is not deemed invalid. Case: Zheng Wendi et al. and Peng Guizhen et al. (Beijing No.1 Intermediate People's Court [2021] Jing 01 Min Zhong No. 8482) The court held that Zheng Wendi's claim to divide the interests of demolition was based on the fact that the contract for the sale of rural houses signed with Peng Deqi was confirmed invalid by the court, but Peng Deqi said that he had already sold the houses involved to Peng Guizhen, a villager from Erjie Village, Kangzhuang Town, and the sale of rural houses should be valid. Therefore, the focus of the dispute in this case is the effectiveness of the serial sale of rural houses. In this regard, the court argued as follows: the right to use the homestead is a right enjoyed by the members of the rural collective economic organization, which is related to the specific membership of the owner, and non-members of the collective economic organization have no right to obtain or obtain it in disguised form, but it is not prohibited to circulate within the members of the collective economic organization. In the serial sale of rural houses, the former first-hand housing sales contract is confirmed to be invalid, which does not necessarily affect the validity of the latter-hand housing sales contract, and should be determined according to whether there are other statutory invalid circumstances in the latter-hand sales contract. In this case, the disputed house has gone through two sales. Zheng Wendi sold the disputed house to Peng Deqi in 1997 and Peng Deqi sold the disputed house to Peng Guizhen in 2010. In the above-mentioned sales process, because Peng Deqi was not a villager in Yanqing District, his purchase of the litigious house was deemed invalid by the court according to law, but Peng Deqi sold the litigious house to Peng Guizhen, who was a villager, which means that the right to use the homestead has been restored to the scope permitted by laws and regulations, that is, the illegality of first-hand housing sales has been eliminated. 3. Summary Analyzing the judgment rules of the above cases, it is not difficult to summarize the basic attitude of the court to the validity of the contract for the sale of houses on rural homesteads. It is summarized as follows: A contract (I) the purchase and sale of a house on a homestead between members of the same collective economic organization is valid. Here, "between members of the same collective economic organization" should be understood in a broad sense. Including: ① both the buyer and the seller are members of the collective economic organization of the village where the house is located; ② the buyer is not a member of the collective economic organization of the village where the house is located at the time of purchase, and has become a member of the collective economic organization of the village at the time of litigation; ③ the buyer is not a member of the collective economic organization of the village where the house is located, but his spouse, parents and children are members of the members of the collective economic organization. In the above three cases, the housing sales contract signed by the buyer and the seller should be determined to occur between members of the same collective economic organization and should not be deemed invalid. (II) the contract for the sale of homestead houses between members of the same collective economic organization is deemed invalid in principle, it can be deemed valid if it is approved by the organization or department with the right of approval. (III) the house is finally purchased by the members of the collective economic organization of the village after the transfer, and the contract has been fulfilled, the contract shall not be deemed invalid. According to the "Decision of the State Council on Deepening Reform and Strict Land Management" (Guo Fa [2004] No. 28), "Prohibit urban residents from purchasing homesteads in rural areas", "The Office of the Central Rural Work Leading Group and the Ministry of Agriculture and Rural Affairs on Further Strengthening the Management of Rural Homesteads" Notice "(Zhong Nong Fa [2019] No. 11)" Homesteads are the basic housing security for rural villagers, it is strictly forbidden to use rural homestead to build villa compound and private hall. It is strictly forbidden to illegally occupy, buy and sell homestead in the name of circulation. Under the pattern of "integration of real estate", the purchase of rural houses by non members of the collective economic organization is easy to cause damage to the rights and interests of the collective economic organization. Therefore, regarding the validity of the contract for the sale of houses on the homestead, the court's judgment is based on the principle of invalidity, and validity is the exception. For the homestead sales contract after the confirmation of invalid treatment, the author briefly summarized as follows: In the above-mentioned judicial practice, the dispute requiring confirmation of the validity of the homestead housing contract is mostly due to the increase in the value of the house caused by the expropriation and demolition of the land after the sale of the rural house, and the seller (villagers) filed a lawsuit to confirm the invalidity of the contract. If the contract is confirmed invalid by the court and the house has not been demolished, the claim shall be made after the specific relocation interests are clear. If the house on the homestead has been demolished due to expropriation and cannot be returned, the court generally tends to think that the seller violates the principle of good faith and fairness, combined with the fault of both parties, according to the seller, buyer 3: proportional distribution of 7 (see civil judgment No. 11060 of the Intermediate People's Court of Qingdao City, Shandong Province [2021] and civil judgment No. 3888 of the Intermediate People's Court of Xuzhou City, Jiangsu Province [2021]). However, if there is an agreement on the demolition compensation in the sales contract, from its agreement, the validity of the clause will not be affected by the invalidity of the sales contract (see Shandong Qingdao Intermediate People's Court [2021] Lu 02 Minshen No. 418 Civil Ruling).</关于加强农村宅基地管理的意见>

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