Due to the particularity of rural homestead land nature and approval requirements, there are some phenomena in real life, such as applying for homestead building, borrowing, buying and selling homestead. Therefore, building a house on someone else's homestead has become a real problem, and the resulting legal disputes are also common. Now let's make a brief analysis of a case:
Cause of action: Wu Yuelong and Wu Zhouquan belong to the dispute of confirmation-(2015) Zhou Ding CenminchuziNo. 16.
(1) party: plaintiff (counterclaim defendant) Chen Hongjun.
Defendant (counterclaim plaintiff) Wu Yuelong.
Defendant (counterclaim plaintiff) Wu Zhou.
(2) Litigation request: Request the court to confirm that the above-mentioned house located at No.60, Dongfang Zhou Jia, Shuangqiao Street, Dinghai District belongs to the plaintiff, and order the two defendants to assist the plaintiff in the formalities of renaming the house and land.
Counterclaim: the plaintiff returned the homestead located at No.60, Zhou Jia, Dongfang City, and changed the request after the court debate to ask the plaintiff to approve the homestead for the defendant to build a house. If the plaintiff cannot obtain the homestead, he is required to pay the rental fee for the defendant's rented house during the period of occupying the defendant's homestead.
(3) Find out the facts: Wu Jianshe, the mother of plaintiff Chen Hongjun, and Wu Yuelong, the defendant, are brother and sister, and Wu Yuelong and Wu Zhou are father and son. In 2003, because the plaintiff had reached the age of marriage but failed to obtain the homestead, Wu Jianshe negotiated with the defendant Wu Yuelong and approved the homestead for the plaintiff to build a wedding room in the name of Wu Yuelong. In the name of defendant Wu Yuelong, Wu Hou Construction went through the examination and approval procedures in the relevant departments (the column of "existing registered population" in the Approval Form for Private House Planning Permission and the Declaration Form for Rural Private House Land was recorded as Wu Yuelong and Wu Zhou), and obtained a homestead in Zhou Jia, a neighboring village. In 2004, a house was built on this homestead (the current house number is "No.60, Dongfang Zhou Jia, Qiaotoushi Community, Shuangqiao Street, Dinghai District, Zhoushan City"), and it has been built ever since it was built. 2065438+0165438 On October 4, 2004/KLOC-0, the two defendants signed the Rural Homestead Adjustment Agreement with the plaintiff and the plaintiff's wife Mao Saihong. Later, due to the plaintiff's failure to meet the defendant's compensation requirements, neither party to the agreement went to the relevant departments to register the change of land use rights.
The above facts are confirmed by the statement of the original defendant and the Approval Form for Private Housing Planning Permit, Report Form for Rural Private Housing Land, Construction Land Planning Permit and Construction Project Planning Permit provided by both parties.
(4) Controversy focus: When building a house on the homestead in the name of others, the ownership of the house belongs to the land use right holder or the house builder.
(5) The court ruled that:
The court held that the ownership of rural homestead belongs to the collective, and the subject of the right to use homestead is specific rural residents. The right to use the homestead is different from the general property right, which can only be exercised by the right to use the homestead, and it is strictly restricted when exercising the right to income or disposal. According to the understanding of the relevant provisions of the Property Law of People's Republic of China (PRC), the transfer of the right to use the homestead must meet the following conditions: first, the transferee meets the distribution conditions of the right to use the homestead; Two, the transfer behavior must obtain the consent of the collective economic organization. The State Bureau of Land Management's Request for Instructions on the Specific Application of Illegal Transfer of Land in Other Forms clearly states that "it is one of the illegal acts of' illegally transferring land in other forms' for the original homestead users to rebuild their houses through other people's investment for investors' use without legal approval, and profit from it or obtain the property rights of the houses". Plaintiff Chen Hongjun built a house on the homestead approved by defendant Wu Yuelong, in essence, the defendant transferred the right to use the homestead to the plaintiff. Because the above conditions are not met, our court finds the transfer invalid. The ownership of the house cannot be established separately from the homestead, so the plaintiff's claim to confirm that the house located at No.60, Dongfang Zhou Jia, Shuangqiao Street, Dinghai District belongs to the plaintiff is not supported. The defendant voluntarily handed over his approved homestead to the plaintiff for building. It is unrealistic for the plaintiff to return the right to use the homestead when there are still buildings on the ground. The defendant did not provide evidence to prove that there was an agreement with the plaintiff in 2003 that the plaintiff approved the homestead to build a house for the defendant or compensated the defendant because the defendant had no house to live in, and the applicant could not obtain the right to use the homestead only by subjective will. Therefore, our court does not support the above request of the defendant. Accordingly, according to the provisions of Articles 152 and 153 of People's Republic of China (PRC) Property Law and Article 62 of People's Republic of China (PRC) Land and Land Management Law, the judgment is as follows:
First, reject the plaintiff Chen Hongjun's claim.
2. Reject the counterclaims of counterclaims Wu Yuelong and Wu Zhou.
(6) Lawyer's point of view:
First of all, can the homestead be transferred separately?
I think the act of transferring the homestead alone should be invalid. According to the Supreme People's Court's works on understanding and applying the provisions of People's Republic of China (PRC) Property Law, we can infer the opinion of the Supreme Court:
The ownership of rural homestead belongs to collective economic organizations, and the right to use it belongs to members of collective economic organizations. So it has the characteristics of free, welfare and restricted transfer. The housing applicant has obtained the right to use the homestead based on the identity of the villagers, but the ownership still belongs to the collective. Illegal transfer of homestead is an infringement on the land ownership of rural collective organizations.
The right to use the homestead shall not be transferred separately, and it shall be deemed invalid in any of the following circumstances:
(1) purchased by urban residents;
(2) legal persons or other organizations purchase;
(3) The transferor has not been approved by the collective organization;
(4) Transferred to a person other than a member of a collective organization;
(5) The transferee's existing house does not meet the allocation conditions of homestead.
The transfer of the right to use the homestead must meet the following conditions:
(1) The transferor owns two or more rural houses (including homestead);
(two) the transfer of members within the same collective economic organization;
(three) the transferee has no housing and no homestead, which meets the conditions for the distribution of the right to use the homestead;
(4) the transfer behavior is approved by the collective organization;
(5) The right to use the homestead shall not be transferred separately, and the land shall be transferred together with the house;
In addition, according to the Reply of the State Bureau of Land Management on the Specific Application of Illegal Transfer of Land in Other Forms, the currently effective State Bureau of Land Management [1990] has a land of Zi Han No.97.
Zhejiang Bureau of Land Management:
Your bureau Zhejiang soil [1990] 15 "on Zhejiang soil complex [1990] No.8 request for instructions" has been received. Through research, it is considered that the Reply of Zhejiang Tufu [1990] No.8 on the Specific Application of Illegal Transfer of Land in Other Forms in your Institute conforms to the provisions of Article 47 of the Land Administration Law of the People's Republic of China. It is one of the illegal acts of "illegally transferring land in other forms" that the users of the original homestead rebuild their houses for investors to use without legal approval, and profit from them or obtain property rights.
Secondly, if the transfer is invalid, who owns the property right of the built house?
According to Article 86 of the Supreme People's Court's Opinions on Several Issues Concerning the Implementation of the General Principles of the Civil Law of People's Republic of China (PRC) (Trial), if no property owner adds an appendage to another person's property, the property owner agrees to add it. If there is an agreement on how to deal with the appendage when returning the property, it shall be handled according to the agreement; If there is no agreement and negotiation fails, it can be dismantled or ordered to be dismantled; If it cannot be dismantled, it can also be returned to the property owner at a discount. If losses are caused to the property owner, it shall be liable for compensation.
According to Article 10 of the Land Management Law of the People's Republic of China, if the land collectively owned by peasants belongs to the collective ownership of villagers according to law, it shall be managed by the village collective economic organization or the villagers' committee; Farmers who have been collectively owned by more than two rural collective economic organizations in the village shall be managed by the rural collective economic organizations or villagers' groups in the village; Farmers who have returned to their hometowns (towns) are collectively owned and managed by rural collective economic organizations in townships (towns). Article 63 stipulates that the land use right collectively owned by farmers shall not be sold, transferred or leased for non-agricultural construction.
The right to use houses and homesteads is inseparable and can only be owned by the same person. Building a house on the land must be approved by certain procedures, and the premise is to obtain the land use right, so the acquisition of the land use right is the basis for obtaining the ownership of the building.
When building a house on the homestead where others have the right to use it, the attachment of movable property (building materials) and real property (land) occurs. According to the principle of civil law, the ownership of attached property should follow the principle that "the attached new property belongs to the real estate owner, and the original movable property owner can get compensation equivalent to his movable property". Therefore, the land use right holder obtains the ownership of the house.
The above contents are for reference only, welcome to learn and communicate!
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References in this article:
Relevant laws and regulations
1. Reply of the State Bureau of Land Management on the specific application of other forms of illegal land transfer
2 the Supreme People's Court opinions on several issues concerning the implementation of the General Principles of the Civil Law of People's Republic of China (PRC) (for Trial Implementation) Eighty-sixth.
3. the Supreme People's Court released 19 typical cases of contract disputes.
4.20 15 minutes of the national civil trial work conference
5 notice of the Supreme People's Court on printing and distributing some opinions on providing judicial guarantee and legal services for promoting rural reform and development
6. Several Provisions on Determining Land Ownership and Use Right (Revised in 20 10)
7 Tangshan rural homestead management measures
measures for the management of house site in the countryside in hebei province
typical case
1. Sun Yuelan and Fang Xiucai have the right to confirm the first-instance civil judgment of the dispute.
2. The civil judgment of the first instance of Wang Moumou and Ma Moumou's ownership confirmation dispute case.
3. The second-instance civil judgment of the dispute over the ownership of stone and stone
4. Chen Gang and Du Guanquan confirmed the civil second-instance judgment of the dispute.
5. Ye Xuefen and Shi's first-instance civil judgment on the dispute over the sales contract
6. Chen Hongjun, Wu Yuelong and Wu Zhouquan are civil judgments of first instance to confirm disputes.
7. Yao Jincheng, Yao Jinguo and Yao Xueman's first-instance civil ruling on disputes over the right to use the homestead.
8. Dispute case between Qu Jia and Quyi homestead.
9. The first-instance civil judgment of Lan Junhua and Lan Chengmiao on the dispute over the right to use the homestead.
10., Wang Yu, and the first-instance civil judgment on the dispute over ownership confirmation.
Judicial viewpoint
1. Rural housing sales are divided into pilot areas and non-pilot areas, and the pilot areas should be protected according to law within the scope permitted by national policies.
2. Protect the usufructuary right of farmers' homestead according to law, and promote the strict management and improvement of the homestead system.
And the following other online articles.
Lawyer Zhang Yaxin of Hebei Zhengyi Law Firm Tel (WeChat) 13673253372