Real estate perspective: land, how do I "idle?

The so-called idle land means that the land use right holder has not developed and constructed the land in accordance with the requirements of laws and regulations or the contract. When it reaches a certain standard, the land may be regarded as "idle". Once it is identified as "idle", the land use right holder may face various punishment measures such as paying land idle fees, or even being recovered by the government free of charge. At present, in view of the problem of idle land, local governments are introducing relevant policies and measures according to the land and time, and strengthening the disposal of idle land. As the main body of land use right, developers should have a basic awareness of prevention and always remember this "hoop curse". In this paper, the author will combine the relevant laws and regulations and cases to make a basic exposition of the identification standards of idle land.

1. existing legal provisions

According to the provisions of Article 2 of the Measures for the Disposal of Idle Land (Order No. 53 of the Ministry of Land and Resources, implemented on July 1, 2012), the following three situations will be identified as idle land: (1) The state-owned construction land use right holder exceeds the state-owned construction land use right paid use contract or the state-owned construction land that has not started development for one year as stipulated in the allocation decision; the (II) has started development but the area of development and construction land accounts for less than 1/3 of the total area of development and construction land, and the development and construction of state-owned construction land has been suspended for one year; (III) has started development but the amount of investment accounts for less than 25% of the total investment, and the suspension of development State-owned construction land for one year. There is a parallel relationship between the three, and any of the above can be identified as "idle land". The author will combine the case, the above three statutory specific discussion.

2. Identification Standard Details

(I) Standard 1: "No construction and development has been started for one year beyond the agreed and stipulated construction and development date".

According to the provisions of Article 2, paragraph 1, of the Measures for the Disposal of Idle Land, if the land use right holder exceeds the date of commencement of development stipulated in the Land Use Contract or the Allocation Decision for one year, but still has not started development of land, It may be deemed as idle land. The starting time of "one year beyond the expiration date" mentioned in the regulation generally refers to the time of construction and development stipulated or required in the land use contract or the allocation decision, and the local land departments generally calculate and judge whether there is any situation of overdue development according to this time.

Case 1-(2018) Su 02 Line Final 196 Wuxi Intermediate People's Court of Jiangsu Province

Wuxi Yinyang Hotel Co., Ltd. and Wuxi Land and Resources Bureau Administrative Expropriation Administrative Judgment of Second Instance

Court judgment: In this case, the two parties signed a contract for the transfer of the right to the use of state-owned construction land and a supplementary contract, clearly stipulating that the construction project under the contract will start before January 1, 2014. Later, due to the review and adjustment of the planning and design scheme, the actual commencement date was adjusted to July 1, 2015. However, by the time the Municipal Bureau of Land and Resources made the determination on December 15, 2016, Yinyang Company still had not started development and had exceeded the actual start of development by one year, which had constituted the idle land situation stipulated in Article 2, paragraph 1, of the Measures for the Disposal of Idle Land. According to this, the Municipal Bureau of Land and Resources collected 6.6 million yuan of land idle fee from Yinyang Company. To sum up, Yinyang Company's appeal reason cannot be established and its appeal request is not supported.

Case 2-(2020) Fujian Longyan Intermediate People's Court, No. 93, Fujian Province

Longyan Natural Resources Bureau, Longyan Siyuan Optoelectronics Co., Ltd. Resource Administration: Other (Resources) Administrative Judgment of Second Instance

Court judgment: Article 2, paragraph 1, of the measures for the disposal of idle land stipulates: "the idle land referred to in these measures refers to the state-owned construction land that the owner of the right to use the state-owned construction land exceeds the contract for the paid use of the right to use the state-owned construction land or the state-owned construction land that has not started construction and development for one year as stipulated in the allocation decision." In this case, the Supplementary Agreement on the Contract for the Assignment of the Right to the Use of State-owned Construction Land (2 × 2 hanging-G32 extension) stipulates that the construction date of the parcel involved is before May 31, 2017, until the defendant makes an idle land determination on March 12, 2019. The parcel involved has not started development for more than a year, which meets the above provisions and constitutes idle land. In summary, Siyuanguang's appeal reasons cannot be established, his appeal was not supported.

(II) Standard 2: "State-owned construction land with an area of less than 1/3 and suspended development and construction for one year."

First of all, the first article of the reply of the General Office of the Ministry of Land and Resources on issues related to the disposal of idle land clearly explains this clause: "the total area of development and construction to be started in item 2 of paragraph 2 of Article 2 of the measures for the disposal of idle land" refers to the land area that land users should complete development and construction within the specified time in accordance with the provisions of the land use right transfer contract and the planning and design conditions, "The total area of development and construction" refers to the land area that the land user has actually invested in development and construction in the "area of development and construction to be started." Secondly, combined with the practice of lawyers, the "construction area" should be treated differently according to the different nature of specific development projects, and specific problems should be analyzed. For example, if you are developing a park project. According to Article 3.3.1 of the Code for Park Design (GB 51192-2016), "the area of park land includes land area and water body area, of which the area and proportion of green land, building land, garden road and pavement site shall be calculated respectively". The main construction content of the park should be environmental projects such as gardens and landscapes. As for the supporting buildings in the park, they serve the landscape and environment of the park. The supporting buildings in the park are not the main body and all of the park. Therefore, to judge the construction progress of a park project, the construction progress of its main construction content (I. e. garden, landscape and other park content) should be used as the standard, and the construction area of its supporting buildings should not be used as the standard, and the development progress should not be judged by the construction of the supporting buildings in the park project.

Case 1-(2012) Lu Xing Zhong Zi No. 125 Shandong Higher People's Court

Qingdao Nanhua Real Estate Co., Ltd. and Jiaozhou Municipal Bureau of Land and Resources Administrative Punishment Administrative Judgment of Second Instance

Court judgment: it is not improper for the appellant's municipal land and resources bureau to determine the land involved as a parcel of land according to the contents of the "no 9 assignment contract. After the appellant Nanhua Company obtained the right to use the land involved in the case, although it has started development, the area of development and construction has not reached the 1/3 of the total area of development and construction that should be started, and it has stopped work at the end of 2006 without approval, in line with Article 2, paragraph 2, of the measures for the disposal of idle land, "if development and construction has started but the area of development and construction accounts for less than 1/3 of the total area of development and construction to be started, or the amount of investment accounts for less than 25% of the total investment, and the development and construction has been suspended without approval for one consecutive year, it can also be regarded as idle land, and it does not conform to the situation of" delay in construction and development due to the actions of the government and relevant government departments. Therefore, the land involved in the case is idle land in accordance with the law.

Case 2-(2019) Jilin Provincial Higher People's Court No. 429

Jilin Century Xing Golden Corn Technology Development Co., Ltd. v. Yongji County Natural Resources Bureau Land Use Right Administrative Decision Retrial Review of Administrative Ruling

Court judgment: In this case, Century Xing Company was built and put into operation in 2003, covering an area of 18455 square meters. On January 6, 2004, the State-owned Land Use Right Assignment Contract was signed with Yongji County Natural Resources Bureau, and 123000 square meters of state-owned construction land use right was obtained. However, the production was suspended at the end of that year and has been suspended until now. Except for the construction area of 18455 square meters in 2003, no new construction was carried out, and the remaining 104545 square meters of state-owned construction land were objectively idle. The "State-owned Land Use Right Assignment Contract" signed by Century Xing Company and Yongji County Natural Resources Bureau did not stipulate that "the area of land for development and construction should be started". In view of the fact that there has been no development and construction for more than 10 years after the signing of the land transfer contract involved in the case, and it has been idle for a long time, resulting in a waste of land resources, the original court determined the "area of land for development and construction" as the total area agreed to be transferred in the contract. The legislative intent of the above-mentioned laws and regulations is not improper. The area of the developed and construction land of Century Xing Company accounts for less than 1/3 of the total area of the construction land to be developed. Therefore, the Yongji County Natural Resources Bureau's decision to recover the right to use state-owned construction land is not improper.

(III) Standard 3: "State-owned construction land with less than 25% investment and suspended development and construction for one year."

According to Article 30 of the measures for the disposal of idle land and Article 1 of the reply of the general office of the Ministry of land and resources on issues related to the disposal of idle land, the "amount of investment" refers to the total amount of funds directly invested by land users for land development, while the "amount of investment" refers to the total amount of funds that land users have invested in land development and construction. And the "amount of investment" and "amount of investment" do not include the transfer price of land use rights, the transfer price and the relevant taxes and fees paid to the state.

How to determine whether the amount of investment is more than 25%? In previous cases, the land-use right holder has employed a qualified accounting firm to audit the amount of investment and issue a special audit report to identify and explain the amount of investment. The author thinks that this method can be used for reference, and at the same time, it can be combined with other evidence of the land use right holder to prove it comprehensively, such as payment vouchers. In addition, if the land use right holder has made a large amount of infrastructure investment in the land involved in the case, including road construction, water supply, electricity supply, etc., the author believes that if the infrastructure investment is not recognized as the amount of investment, then it is obviously unfair to the developer. fair.

The author's point of view: for the identification of idle land, the legislative intention is to urge developers and other land use rights holders to complete the development and construction as soon as possible within the time limit, so as to avoid the occurrence of land hoarding, unfinished and other undesirable phenomena. Therefore, it is suggested that the land use right holder should make various preparations before taking the land, complete the development and construction as soon as possible, and avoid being identified as "idle". In addition, once the problem of idle land leads to administrative reconsideration and administrative litigation, it is suggested that the land use right holder should also submit the investment in the early stage of the project plot as evidence, and explain the complexity and seriousness of the follow-up matters brought about by the resumption of land, so as to persuade the reconsideration organ and the court to make a favorable judgment from the side. Finally, it is also suggested that the land use right holders should not limit their vision to reconsideration or litigation procedures. While providing relief through legal channels, they should also pay close attention to the commencement procedures. Projects that have already started the procedures should also increase investment and continue development and construction as soon as possible, so as to achieve favorable results in the identification of idle land.