Real estate perspective: where is the small property right house? -- Analysis of the legal issues related to the small property right house

Published:

2022-03-25

Since 2003, the concept of "small property room" has begun to enter people's lives. In theory, this is not a professional legal concept, but more like a special title in people's daily habits. As for the definition of "small property right house", there are many opinions in academic circles. The author combines relevant laws and regulations and his own work experience to define "small property right house" as follows: "it refers to the housing built on rural collective land, without paying the land transfer fee, without obtaining the housing ownership certificate issued by the national housing management department and used for sale". As the name implies, its relative concept is "large property right house", while large property right house refers to a house with a house ownership certificate issued by the national real estate administrative department, that is, a house with a real estate certificate. "Small" in 1. Legitimacy -- Small Property Right House and Illegal Construction Generally speaking, the "illegal construction" in the law refers to the construction of houses and facilities that are built outside the planning area without obtaining a construction project planning permit and in violation of the Land Management Law, the Urban and Rural Planning Law and other relevant laws and regulations. Therefore, from the perspective of the legality of housing construction behavior, small property houses can be divided into two categories: small property houses with illegal building procedures and small property houses with legal building procedures. For the convenience of distinction, the author calls the former "illegally built small property house", while the latter calls it "legally built small property house". (I) Illegal Construction of Small Property Houses-Characteristics 1. Such houses have not obtained the approval procedures for building land and construction planning, and the houses themselves are illegal construction; 2, such houses can not be legally registered original ownership of the house; 3. Such houses cannot be registered for the transfer of ownership of the house and obtain a certificate of ownership of the house; (in practice, a "certificate of ownership" is usually issued by the township or village committee to prove the so-called ownership of the house by the buyer); 4, the vast majority of village collective joint developers for external sales and construction. Small Property Houses Legally Built in (II)-Features 1. This kind of house itself is legally constructed, but because it is built on collective land without going through the land acquisition and transfer procedures, the house cannot be legally registered; 2. Such houses have de facto ownership, and the original takers of the houses are restricted to members of the collective economic organization; 3, this type of housing usually has a township or village committee issued a "certificate of property rights", in order to prove the ownership of property rights; 4. Some of these houses are built for external sales, and some are built for the villagers' own use, and then the villagers sell them to the outside world. (Note: The houses legally built by villagers on their homesteads do not belong to the category of small property houses referred to in this article, but if the villagers or village collectives sell their own legally built homesteads, they belong to the legal small property houses referred to in this article). To sum up, as far as small property rights houses are concerned, illegally built small property rights houses are illegal in land use, house construction, trading and other links; while legally built small property rights houses have passed the approval procedures such as rural construction planning permission and construction engineering construction permission, and the construction behavior is legal. Therefore, we can not generally think that the houses with small property rights are all illegal buildings and should be demolished, while the houses with small property rights are at greater risk of being forcibly demolished. "Small" in the Effectiveness of 2. Sale Contracts -- Analysis of the Effectiveness of Small Property Right House Sale Contracts Small property house legally built in (I) 1. The opposite party-urban residents: Article 10 of China's Constitution clearly stipulates that urban land belongs to the state. Land in rural and suburban areas, except for those owned by the state as stipulated by law, belongs to the collective; homesteads, private plots and private hills also belong to the collective. No organization or individual may appropriate, buy, sell or otherwise illegally transfer land. Article 2 of the Notice of the General Office of the State Council on Strengthening the Management of Land Transfer and Prohibiting Land Speculation (No. 39 [1999] of the State Council) stipulates: to strengthen the management of the transfer of farmers' collective land, it is strictly forbidden to illegally occupy farmers' collective land for real estate development; farmers' collective land use rights shall not be sold, transferred or leased for non-agricultural construction; farmers' houses shall not be sold to urban residents, nor shall urban residents be approved to occupy farmers' collective land to build houses, the relevant departments shall not issue land use certificates and real estate certificates for houses built and purchased in violation of the law. In addition, according to the "Notice of the General Office of the State Council on Strict Implementation of Laws and Policies on Rural Collective Construction Land", rural residential land can only be allocated to villagers in the village, and urban residents are not allowed to purchase homesteads, farmers' houses or houses with small property rights in the countryside. It can be seen that the law of our country clearly stipulates that rural houses can be allocated to the villagers of the village and the sale to urban residents is prohibited. Therefore, the contract of sale and purchase of small property houses by urban residents is generally recognized as an invalid contract. Related cases: Case 1:(2015) Hong Min San Zhong Zi No. 91 The judge's view in the civil judgment of the Intermediate People's Court of Nanchang City, Jiangxi Province: "Rural land, except for what is owned by the state by law, belongs to the collective ownership of farmers. The land attached to the demolition and resettlement houses in this case belongs to rural collective land. According to the" Notice of the General Office of the State Council on Strict Implementation of Laws and Policies on Rural Collective Construction Land "," Rural residential land can only be allocated to villagers in the village, and urban residents are not allowed to purchase homesteads, farmers' houses or small property houses in the countryside ". Homesteads, farmers' houses or small property houses can only be transferred among members of the same rural collective economic organization, the act of urban residents buying farmers' houses in rural areas is not protected by law, and the sale is generally invalid. (Court of Second Instance) The" Housing Subscription Agreement "signed by Wang and Huang violated the" Notice of the General Office of the State Council on Strict Implementation of Laws and Policies on Rural Collective Construction Land "that" rural residential land can only be allocated to villagers in the village., Urban residents do not get rural purchases of homesteads, farmers' houses or small property houses "and are invalid." Case 2:(2021) Yu 0329 Minchu No. 3446, Yichuan County People's Court, Henan Province, the judge's point of view in the civil judgment: "In this case, the land used in Yichuan County is the land collectively owned by the villagers of Zhongxi Village Committee, ...... The project has also passed the Yichuan County Rural Construction Planning Permit and Construction Permit, and the house involved is a small property house built legally. However, because the house involved in the case was a house with small property rights rather than a real commercial house, that is, a house with large property rights, and did not obtain a presale permit, the plaintiff Ding Yanli, as an urban resident and not a member of the collective economic organization of Zhongxi Village, did not have the qualification to purchase the houses built on the land collectively owned by the rural village, therefore, the" Yichuan Zhongxi Community Resettlement Housing Contract "signed by Ding Yanli and Hengtian Company is invalid because it violates the mandatory provisions of laws and administrative regulations." Of course, according to the actual situation, there are exceptions in judicial practice. If urban residents obtain the collective organization's household registration after signing the small property right house sales contract and are approved by the relevant departments, the house sales contract is generally recognized as valid. 2. The opposite party-members of other collective organizations: From the current judicial practice, the housing sales contract signed with the villagers outside the village tends to be invalid, and there are still judicial disputes. Related cases: Case 1:(2013) The judge's point of view in the civil judgment of the Intermediate People's Court of Ganzhou City, Jiangxi Province, No. 264: "The right to use rural collective land and homestead is a right enjoyed by members of rural collective economic organizations. It is related to the specific identity of the owner, and non-members of the collective economic organization have no right to obtain or obtain it in disguised form. The subject matter of the" House Sale Agreement "signed between the original and the defendant is not only the house, but also the right to use the corresponding collective land homestead. The" Housing Sale Agreement "signed by the original and the defendant violates the mandatory provisions of relevant laws and regulations of our country and should be deemed as an invalid agreement. The main body of the right to use the homestead is the rural residents of the specific rural collective economic organization. Although the appellant yin mou's household registration is a rural household registration, he is a villager of XX group, XX village, XX township, chongyi county, and is not a member of the collective economic organization of XX new village, XX town, chongyi county. he does not have the qualification to use the homestead of XX new village, and the house sale agreement signed by both parties is a kind of house sale on collective land, and the house sale has not obtained the consent of XX new village, XX town, therefore, the house sale agreement signed between the appellant Yin and the appellee Zhong is invalid." Case 2:(2018) The judge's view in the civil judgment of the Intermediate People's Court of Xuzhou City, Jiangsu Province, No. 233 of Su 03 Minchu: "The land under this house is the collective land of Peng Er Group, Sanzha Village, Qing 'an Town, Suining County. The resident ID card submitted by Han Xiufeng stated that his address was No. 102, Xinzhou Lane, Suicheng Town, Suining County, Jiangsu Province, and now No. 160, Sun Zhao Zhao Village. If you are not a member of the collective organization, you cannot be transferred to the house involved, nor can you go through the real estate registration procedures of the house involved." From the current judicial practice, for the house sales contract signed with the villagers outside the village, it is more inclined to determine that the contract is invalid. But the basic spirit of the civil code contract is autonomy, honesty and credit. If it is confirmed that such a contract is invalid, the seller is likely to claim that the contract is invalid on the basis of land appreciation, demolition compensation and other reasons, so that buyers who abide by the principle of good faith suffer losses, thus damaging the social foundation of public order and good customs and good faith. Therefore, the author thinks that the principle of party autonomy should be respected, depending on the specific circumstances of the case to determine whether the contract is valid. Note: China's laws and regulations do not expressly prohibit the signing of housing sales contracts with members of the collective economic organization, and because of the legal property rights certificate, such houses can be transferred among the members of the collective economic organization, at the same time, through the circulation within the collective economic organization can also make full use of idle homesteads. Therefore, the contract for the sale of small property houses between the members of the collective economic organization is generally recognized as legal and valid. (II) for illegally built small property houses For the illegal construction of small property rights generally directly determine the contract is invalid, as the subject matter of the contract of sale of housing, that is, illegal construction of small property rights housing itself is illegal construction, can not occur the legal effect of the establishment of property rights, can not be transferred at all, as the subject matter of the contract can not be realized, can not have legal effect. Moreover, the vast majority of such illegal small property rights housing sales are carried out on the premise of harming urban planning and environmental protection, public welfare undertakings and township collective public interests. If the contract is determined to be valid, it is equivalent to encouraging illegal construction in disguise. Therefore, it is the basic principle to determine that the contract is invalid. 3. small property rights do have a big risk-small property rights housing purchase risk. Conclusion At present, there are a large number of small property houses in many parts of our country, especially in the township area. The high demolition cost and huge waste of resources make the country unable to solve the small property market thoroughly and effectively in the short term. Although the price of small property right houses is relatively cheap, there is no need to pay taxes and fees in the transaction process, there is no restriction on purchase and there is no need to worry about the expiration of property rights, but from the perspective of buyers and investors, especially for urban residents, if they do not know the specific housing situation information, it is risky to buy a small property right house only for a short time, so you must keep your eyes open and be cautious before buying a house.

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