Research on the legal issues of small property room
Published:
2010-07-31
Abstract:Small property right house is not a legal concept, but a descriptive word used by people to distinguish houses built on state-owned land and houses built on collective land. However, although the existing laws and policies prohibit the circulation of small property right houses into the market, the small property right houses are not strictly prohibited from withdrawing from the real estate market due to the policy, but there is a growing trend. This paper attempts to explain the concept and classification of small property rights, gradually analyze the problems of small property rights in market transactions, and analyze the reasons for the formation of small property rights, and finally put forward measures to solve the problem of small property rights.
Key words:Small Property Right House Legal Policy Small Property Right House Sale
The concept of small property right house came into public view because of a house sale case in Songzhuang, Beijing in 2006. The painter Li and his wife (urban residents) bought the house and courtyard of Ma, a farmer in Songzhuang village, for 45000 yuan in 2002. At the end of 2006, Ma proposed to cancel the agreement, and the Beijing Tongzhou District Court ruled that the house purchase agreement between the two parties was invalid on the grounds that non-village collective members were not allowed to buy or sell the houses of village collective members. The house involved in the case was called a small property house by the media, and this case was also called the first case of a small property house in China. After development, all houses built on rural collective land for sale to non-village collective members (mainly urban residents) were affectionately called small property houses by the media, society and the majority of home buyers. Therefore, the purpose of this paper is to study a series of legal and social problems caused by non-village collective organization members (especially urban residents) in the purchase of houses built on rural collective land, and then put forward measures to solve the problem of small property rights. Without special instructions, the scope of small and medium-sized property rights houses in this paper is limited to residential houses purchased by members other than collective economic organizations (mainly urban residents) and built on rural collective land.
The concept and classification of small property room in 1.
(I) the concept of small property room
The introduction of the concept of small property right house is to reflect a series of legal and social problems caused by the purchase of houses built on the rural collective land by members of non collective economic organizations (especially urban residents). The definition of the concept is to explain and study the convenience of the problem. Based on this, the author defines the small property right house in such a state: for houses built on collective land and sold to non-members of the collective economic organization (mainly urban residents), buyers can usually obtain the house property right certificate issued by the village collective or township (town) government, but according to the current laws and regulations of our country, only the house ownership certificate issued by the real estate management department of the people's government at or above the county level is the legal and valid house property right certificate, no other unit or department has the authority to issue home ownership certificates. Therefore, the property right certificate issued by the village collective or the township (town) government is not the real property right in the legal sense, and this kind of house is called "small property right house" or "township property right house".
Classification of Small Property Houses in (II)
At present, houses purchased by members of non-collective economic organizations and built on rural collective land can be divided into the following three categories[①]:
1The house on the farmer's own homestead, that is, the farmer's private house.
The characteristic of this type of house is that its land use right (that is, the right to use the homestead) is owned by the individual farmer, and the house itself has legal property rights, but the law does not allow it to be sold to non-village collective organization members. After the members of the collective organization (mainly urban residents), the non-village collective organization members cannot get the real property right. For the buyer, this is a small property right house. This kind of house sale contract is generally considered invalid in law.[②]
2, Due to the construction of a new countryside or the resettlement of villagers due to land acquisition, etc., the houses used for farmers' houses built by the village collective economic organization on the collective land shall be used to resettle the members of the collective economic organization, except for the members of the collective economic organization. Houses sold by people.
This type of house is generally embodied in the form of a farmer's community. Its construction is planned and approved by the government. The entire housing construction process is legal. However, after the villagers of the collective economic organization are resettled in this type of house, the remaining part of the house Sold to non-members of the collective economic organization (mainly urban residents) does not meet the government's approval purpose. Once sold, for the buyer, a small property right house will be formed, and the house sale contract is generally considered invalid.
3Houses developed on village collective land for sale to non-members of village collective organizations.
Because its construction has not been approved by the planning and government, but by the village committee to advocate real estate development on collective land, which itself does not comply with the law. In the absence of supplementary procedures or approval by relevant departments, even members of collective economic organizations cannot obtain legal property rights certificates, and it is even more impossible for non-collective economic organization members to obtain them.
Analysis of the problems of small property room in 2.
There are problems in the development and construction of small property houses in (I)
Compared with ordinary commercial housing in cities, there are many problems in the development and construction process of small property houses:
1The first type of small property right house is actually the construction of private houses of rural farmers. After applying for the right to use the homestead, the house can be built with the approval of the relevant departments. Because it is built by individual farmers, there is no special design, construction, supervision, etc., not to mention the various supporting facilities of the city's commercial housing, and there are almost no related taxes and fees. The entire construction process and the quality of the house are generally not subject to any supervision.
2The second category is more complicated. Its development and construction generally occur in the process of old village reconstruction, village merging and town reconstruction, and urban village reconstruction. It is developed by the village committee itself or jointly developed by the village committee and real estate developers. The village committee builds houses for the members of the village collective organization, and builds concentrated houses on the land for rural collective construction or on the homestead of farmers during the transformation of the new countryside. Since the village committee directly uses the construction land of the rural collective organization or the homestead to build housing on the land does not need to pay the land use right transfer fee that similar developers hand over to the government to obtain the land, there is no "state-owned land use right certificate". When the house is completed, the "Commercial Housing presale Permit" cannot be obtained.
3The construction process of the third type of small property right house itself has not been approved by the relevant examination and approval, and is completely in the black zone outside the supervision and management. Even compared with the second type of small property room, this type of small property room also has many problems. The developer has not been approved by the urban planning and construction management department, the construction process is not supervised and inspected, there is no supervision by the real estate department, there is no legal property right and procedures, and the legitimate rights and interests of the buyer are not guaranteed in the event of a dispute.
From the perspective of quality assurance and housing maintenance, due to the lack of legal development and construction procedures, the construction of houses with small property rights may not have gone through procedures such as housing quality acceptance at all, and housing construction quality supervision is absent, which is more likely to cause housing quality problems.
(II) the legal risk of small property room.
1Buyers of small property houses are likely to face the risk of empty property.
Since the small property right house does not have any sales or presale procedures, for the buyer, it is very likely to face the risk of empty property. In addition, small property rights housing can not engage in mortgage loans, its sales speed is slower than ordinary commercial housing, once the housing pre-sale funds are not enough for development, it is easy to appear "unfinished buildings". If the buyer purchases the small property right house in presale way, he cannot have a comprehensive and accurate understanding of the developer's credit and the basic situation of the project. Compared with ordinary commercial housing, its development process lacks supervision of all links, and there is no administrative agency to review the developer's behavior. Therefore, the pre-sale funds of the house cannot be guaranteed to be used for the construction of the house, and it is easy to be misappropriated. Once the house cannot be delivered on time or cannot be delivered, it is often difficult for the buyer to recover the house money.
2Small property rights can not obtain a legal certificate of ownership of the house.
Based on the current relevant laws and regulations of our country, the ownership of houses built on collective land and the collective land use rights attached to them cannot be freely transferred to the outside world, and the scope of transfer must be limited to the members of collective economic organizations, and the transaction of small property houses Obviously beyond the above restrictions, it is impossible to obtain a legal ownership certificate in accordance with the existing legal procedures.
3Due to the lack of legal ownership certificate, the buyer of small property right house faces great legal risk.
(1) In a legal sense, the buyer is not the owner of the house. Especially for the first and second categories of small property rights, the owner of the house in the legal sense is still the original owner of the house who originally had the certificate of ownership of the house, in the formal sense, the original owner of the house still enjoys the legal right to dispose of the house, can still mortgage the house or even sell it again.
(2) Because there is no legal property right certificate, the circulation value of small property right house cannot be realized normally. This means that houses with small property rights cannot normally enter the market and be sold again, nor can they be legally mortgaged, and even if they are rented, they cannot go through legal procedures. The economic value of the small property right house can not be brought into full play, and its productive function is relatively limited.[3]
(3) Failure to inherit, bequeath and give normally. The elderly as a buyer does not have property rights in the legal sense, and according to the principle of civil law, the rights of the heir or the bequestee or the grantee cannot be superior to the heir, the bequestee or the giver. That is to say, this state of uncertainty in civil relations will continue.
(4) In view of the obstacles to the legality of "small property houses", the relevant "ownership" or transfer behavior has not yet been recognized by law, and it cannot resist the country's land acquisition and demolition. Once the state decides to expropriate the collective land or demolish the members of the collective economic organization, urban residents who purchase such houses may be excluded from the scope of compensation because they are not qualified buyers.[4]
Reasons for the formation of small property houses in 3.
Legal Reasons for the Formation of Small Property House in (I)
1The model of integration of housing and land
Under the legislative model of the integration of real estate in our country, the right to use construction land and the ownership of the above-ground objects are forcibly disposed of together, that is, the land goes with the house, that is to say, if the houses built on the collective construction land are sold to the outside world, the right to use the collective construction land within the scope of the house occupation is also transferred to the buyer of the house, although the owner of the house has complete property right to his own house, however, selling houses disposes of the right to use collective construction land in disguise. Because the transfer of the right to use collective construction land is restricted, selling houses is also restricted. This forms a contradiction. Our country recognizes that land property rights and housing property rights are two different types of property rights. According to the principle of civil law ownership, housing owners have the right to dispose of their own houses, so housing ownership can of course be transferred; but according to the principle of integration of real estate, housing property rights and land property rights are forcibly disposed of together, and the transfer of land property rights is restricted, resulting in housing owners unable to dispose of their own houses. This creates the anomaly of introducing opposite results based on two legal principles. Therefore, the key to the problem of small property right house lies in the right to use the collective construction land within the scope of its occupation.
2Unreasonable urban-rural dual land system
The system of hierarchical ownership by the state and the collective has formed China's unique dual economic structure, in which different ownership subjects exercise different ownership rights. However, the state has strict restrictions on the rights and interests of collective land ownership, resulting in a long-term unequal relationship between the two forms of land ownership in terms of property rights.
(1) The land use rights of individual farmers in collective economic organizations are incomplete. According to the current laws and regulations of our country, the land collectively owned by villagers can only be converted into construction land under the three conditions of "establishing township enterprises", "villagers building houses" and "township (town) village public facilities and public welfare undertakings. Collective economic organizations cannot decide on their own to invest collective land in real estate development and other fields that can produce huge economic benefits.
(2) The land income rights of individual farmers are incomplete. Due to the imperfect land acquisition system in my country, the land compensation standard is too low, and most of the land price difference income is obtained by local governments or developers. Land-lost farmers not only cannot benefit from the land acquisition process, but may even lose their original living standards.
(3) Collective economic organizations and individual farmers do not have the right to dispose of collective land in a substantive sense. Since the final right to dispose of rural collective land in China belongs to the state, the collective economic organization, as the owner of the land, does not have the right to dispose of the land in any practical sense, and may not freely buy, sell, lease, transfer and mortgage the land.
(4) Individual farmers of collective economic organizations lack effective control over the property rights of collective land. For a long time, village committees, as rural grass-roots autonomous organizations, have been regarded as representatives of collective economic organizations. Due to the unclear property rights of collective land ownership, individual farmers do not have strong rights to oppose the rights of collective economic organizations exercised by village committees on their behalf.
This long-standing unequal relationship eventually formed a dual structure of "two property rights and two markets" in our country. This kind of urban and rural areas have other "urban and rural separation" land system, which is the root of the disease of small property housing.
Social Reasons for the Formation of Small Property Houses in (II)
1The rising price of commercial housing
In recent years, with the acceleration of the pace of real estate development and the development of rail transit, small property houses and general commercial houses have been connected, and the traffic conditions have also been greatly improved. The geographical difference between commercial houses and small property houses has been reduced or even disappeared. Due to the sharp rise in the overall price of commercial housing, part of the housing demand that cannot be released due to the high housing prices naturally flows to small property houses.
2Ineffective supervision of government departments
The development and construction of small property right houses involve the use of land and the construction of houses. The small property right houses that have existed for more than ten years are related to the failure of relevant departments to properly stop them. There are two main reasons: on the one hand, because it is at the intersection of various functional management departments of the government, there are many departments on the surface, but in fact no one is in charge of the situation; on the other hand, even if there is regulatory responsibility, as these regulatory departments are sometimes indifferent to this kind of behavior, let it develop, and fail to curb the emergence of this kind of abnormal property right house from the source.
3The imperfection of the housing security system
At present, China's urban residents solve the housing problem mainly through the local government-led model, because the government does not "establish and improve the multi-level urban housing supply system based on affordable housing", only a small number of affordable housing, low-rent housing and other ways to solve the housing problem of low-and middle-income people, there is a big gap between the supply quantity and the real demand, and mainly rely on the development of commercial housing to solve the urban housing needs, this has led to a rapid rise in housing prices in Chinese cities. As a result, the advantages of small property rights in housing prices have concealed their risks, so they are very popular in the real estate market.
4The subjective interest impulse of the village collective and the objective needs of urban development.
The entry of collective land into the real estate market has led to the emergence of a large number of houses with small property rights, which is the consequence of the huge economic interests of the village collectives who own the land. Compared with passively waiting for land acquisition and only obtaining a small amount of compensation, actively investing collective land in the high-efficiency real estate industry can undoubtedly get more benefits, and keeping the income from land development as much as possible in the village is the rural collective. The economic incentives for the development of small property houses, collective land entering the urban real estate market to seek high profits has become an inevitable trend. Although it is subject to the strict restrictions on land use by the state, the village collective has independent and exclusive ownership of collective land after all, and there are still a considerable number of construction land and homestead for township enterprises on the collective land, which also leaves a flexible gap for the collective land to enter the urban real estate market.[5]
4. Legal Thinking on Solving the Problem of Small Property Right House
(I) the Basis of Solving the Problem of Small Property Right House -- Legal Analysis of the Circulation of Collective Land Use Right
Through the above analysis, we can see that the key to solving the problem of small property rights is whether the collective land use right can enter the market and circulate normally like the state-owned land use right. The current legislation strictly controls the circulation of collective construction land and implements the non-market policy of collective land. Collective land cannot directly enter the non-agricultural land market. The only legal way to convert agricultural land into non-agricultural land is through government land acquisition and transformation into state-owned land. The government completely monopolizes the primary market for the transfer of land use rights, and completely excludes farmers' property rights from the main body of agricultural land in land decision-making. From the perspective of legal theory, the reasons for this kind of legislation are not sufficient, and there are also great disadvantages in practice.
1The current legislation is not justified.
Under the existing land property rights and land acquisition system, the expropriation of farmers' land is too cheap, which leads to the local government's strong desire to make money from the land. The enclosure movement in the name of various development zones has occurred one after another. A large amount of land has not been developed after being enclosed, and has been abandoned for many years., Overgrown with weeds. It is precisely because the circulation of the right to use collective construction land is strictly restricted, farmers can not enjoy the benefits brought by land value-added, and at the same time, the income from growing grain is too low, which leads to many farmers choosing to work in cities, so a large number of cultivated land is abandoned, and the sown area and output of grain are reduced year by year. Liberalizing the circulation of the right to use collective construction land will not inevitably lead to the reduction of cultivated land. On the contrary, if the right to use collective construction land is not allowed to enter the market in a timely manner, the red line of 1.8 billion mu of cultivated land in China will be in jeopardy.
2Current legislation violates the principle of equality.
The right to use construction land on collective land cannot enter the primary market of land transactions for free circulation, which in fact restricts the right to dispose of collective land ownership. After modern industry and commerce have accumulated huge resources, manpower, capital and other resources, the policy of "urban nurturing the countryside" should be implemented in due course, and the legal urban-rural dual structure hinders the natural trend of urban nurturing the countryside.
3The imperfection of the land expropriation system highlights the shortcomings of the current legislation.
my country's current land acquisition system is very imperfect. If the right to use land for collective construction can only enter the market through land acquisition, then the vital interests of land-expropriated farmers cannot be guaranteed, and the value of collective construction land cannot be reflected. However, only relying on the improvement of the relevant system of land acquisition compensation can not fully guarantee the interests of farmers, because as long as the government as a transaction party to participate in the transfer of collective land use rights, in this process will inevitably appear "benefit transfer" so that the actual land owners can not get due compensation. Therefore, to solve the problem of land-lost farmers, it is not entirely a problem of compensation, but to give farmers the right to dispose of their land independently. Farmers who own land directly deal with enterprises or real estate developers who need land in the process of industrialization or urbanization in accordance with market rules. The government is in charge of the formulation and implementation of land laws and regulations, not as a direct participant of land buyers and sellers, this is the fundamental way to solve the problem.[6]
The Treatment of (II) Stock of Small Property Right Houses
2008In the report submitted by the Ministry of Land and Resources to the State Council on houses with small property rights, it stressed that there are three principles for the treatment of houses with small property rights: new ones must be seriously investigated and dealt with; The historical formation should be properly handled by the local government. The third principle is that developers must not be allowed to take advantage of small property houses. For the existing houses with small property rights, we should make different treatment according to different situations based on the principle of fairness and justice. We must not demolish them all or issue property rights certificates to legalize them.
1Strictly supervise the demolition behavior, and carefully dismantle some small property houses.
Under normal circumstances, only when basic farmland is illegally occupied or other serious illegal buildings are formed, can it be included in the ranks of forced demolition. For houses with small property rights that have been sold, if they must be demolished, all parties must do a good job after the demolition in advance, not just demolish them, so as to avoid more disputes caused by demolition.
2Provide a variety of legalization programs, free choice by the buyer.
For the first and second types of small property rights houses and part of the third type of small property rights houses that conform to the overall plan of land use and urban and rural planning, the legal government agency can reissue the property right certificate to legalize it by paying relevant taxes and fees. The legalization scheme of small property right house should serve the reform of housing supply system, which is divided into three schemes, which are chosen by buyers.
(1) Conversion into commercial housing, issuance of ordinary commercial housing title certificate
If the buyer is willing to make up the relevant costs, you can obtain an ordinary real estate certificate and land use right certificate. The owner of the house who has obtained the real estate certificate is equivalent to the buyer of ordinary commercial housing. The owner can live on his own or directly list and trade according to law, and the transferee is not subject to any restrictions. The relevant expenses to be made up by the buyer are the difference between the purchase price and the local average house price at the time of purchase, and the difference is used to pay the land transfer fee and related taxes.
(2) Conversion into affordable housing, issuance of affordable housing property rights certificate
If a part of the small property rights housing can be transformed into affordable housing, it can increase the legalization of small property rights housing inquiry-to improve the collective construction land use right transfer system as the idea of housing supply, to ease the housing pressure. For self-occupied buyers who purchase houses with small property rights, if they meet the conditions for purchasing affordable housing after verification, the issuing authority will directly issue a certificate of ownership of affordable housing to them.
(3) Acquired by the government and converted into low-cost housing
Buyers of houses with small property rights can also choose to check out, which will be converted into low-rent housing after being purchased by the local government and rented to low-and middle-income households. The Ministry of Construction clearly requires that all cities and counties across the country must establish a low-rent housing system by the end of 2008. So far, the development of low-rent housing in various places is not ideal. If small property rights houses can be successfully transformed into low-rent housing, it can not only expand The supply of affordable housing can solve the housing problems of many low-income families, and reduce the government's land and capital investment in affordable housing.
Legalization of (III) is the fundamental way to solve the problem of small property rights
From a legal point of view, on the one hand, the law gives farmers collective ownership of collective land, on the other hand, the law does not clarify the subject of ownership and unreasonably restricts the exercise of ownership, resulting in the same land, different rights and different prices of state-owned land and collective land. From the perspective of social and economic development, houses with small property rights arise from the bubble development of the real estate market and soaring housing prices, as a resource, land is excessively allocated to local governments and real estate developers, farmers' land and property rights are arbitrarily seized, and ordinary citizens are unable to buy houses because of high housing prices. Small property houses have become the economic interests of farmers and citizens. A self-relief method.
5. closing remarks
Although the current policies and laws prohibit urban residents from buying houses with small property rights, this prohibition is inappropriate at present. The report of the 17th National Congress of the Communist Party of China put forward "coordinating urban and rural development" and "forming a new pattern of integration of urban and rural economic and social development". This requires breaking the barriers of urban and rural separation, gradually realizing the rational flow and optimal combination of production factors, and promoting the rational distribution of productivity between cities and villages. The prohibition of small property rights housing transactions is to artificially create barriers between urban and rural areas, which hinders the exchange of talents between urban and rural areas, and is not conducive to the reasonable distribution of productivity between urban and rural areas. It is against the party. The spirit of the 17th National Congress of the Communist Party of China.
Small property rights houses have existed for nearly ten years, which is related to the vital interests of farmers and urban low-income groups; moreover, small property rights houses undoubtedly play a very effective role in restraining the bubble of the real estate market objectively, and are scarce housing resources. Useful supplement. The rash prohibition of small property rights houses is contrary to the needs of social economic development, the requirements of people's livelihood security and the theme of building a harmonious society. In the long run, "home ownership" is the most basic requirement of a harmonious society. The main body of collective land enjoyed by farmers The status must be restored from the law, and the integrity of the land rights enjoyed by farmers must be restored from the law, the design of the entire legal system must redistribute social resources rationally. Therefore, the legalization of small property rights is an inevitable trend.
[①]Here, the author only discusses the small property right houses built on collective construction land, and those built on agricultural land should be demolished due to serious violations of the law, and the author will not discuss them here.
[②]Of course, some courts and scholars believe that the contract for the sale of such houses is valid, especially after the introduction of the "Contract Law Interpretation II", but in view of the principle of distinction between creditor's rights and property rights, even if the contract is valid, the property rights of the house are still not transferred, but the legal responsibilities are different.
[3]Xu Zhongmeng, Lei Yankun: "Recognizing the Risks of Small Property Housing", Premier Financial Management, No. 7, 2007, p. 71.
[4]Ruan, "On the Risk Chain of 'Small Property Houses'", Modernization of Shopping Malls, No. 5, 2008.
[5]Huang Xuebi: "Exploring the Problem of Small Property Housing from the Perspective of Property Rights Theory", Wuhan. Financial and Legal Information, No. 8, 2008..
[6]Lin Yifu: Industrialization, Urbanization and Land Rights. In Lou Peimin, editor-in-chief, "China's Urbanization: Farmers, Land and Urban Development", China Economic Press, 2004 edition, p. 7..
(This article won the second prize of 2010 Jinan excellent lawyer paper)
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