A rural land dispute case. There are several facts that need to be implemented: 1. Does the old house have a homestead certificate? 2. Is there a homestead certificate for "new houses are built in other places"? 3. Is the building area of the other party approved by the village committee?
According to the land management law, one household and one house are implemented in rural homestead. If your home does not meet the requirements of owning two homesteads, the old homestead will be returned to the collective after the exchange. If the old house base has a certificate and the other party occupies it privately, it constitutes infringement; If the collective has been recovered or replaced, the other party constitutes an infringement on the collective land (without the consent of the village Committee), but it does not constitute an infringement on your home.
How much does a lawyer need for a land dispute case? This can be charged according to the difficulty of the case and the agreement of the lawyer.
How to apply for handling land dispute cases In short, the land registration system is a statutory system of the country. The Property Law of People's Republic of China (PRC) has established a unified registration system for real estate. Land is the most important and basic real estate, and land registration is the basis of real estate registration. Land registration refers to the act of recording the state-owned land use right, collective land ownership, collective land use right, land mortgage, easement and other land rights that need to be registered according to law in the land register for publicity.
Land registration is a legal system for people's governments at or above the county level to examine, approve, register, confirm and issue certificates of land ownership and use right in accordance with state regulations on land ownership and land registration and legal procedures.
Land disputes cases Land disputes can be divided into three categories according to their different contents:
I. Dispute cases without written land transfer contract
According to Article 37 of the Rural Land Contract Law, both parties to the transfer of land contractual management right shall sign a written contract. However, in reality, written contracts are rarely signed for contracted land transfer, and the two sides mostly subcontract, lease, exchange or cultivate land on behalf of each other in the form of oral agreements. In this case, one party's request to recover the subcontracted, leased, exchanged or cultivated land involves an oral agreement on how to determine the land. There are different understandings in practice. Some people think that if the two parties fail to sign a written contract according to law, their subcontracting, leasing, exchange or contract farming relationship is not established according to law or oral agreement should be deemed invalid.
The author believes that according to rural customs, land transfer methods such as subcontracting, leasing, exchanging or farming on behalf of others are often verbally agreed, and mutual delivery of transferred goods is a sign of the establishment of the relationship between the two parties. If both parties have no objection to the original oral agreement, and the fact of subcontracting, leasing, exchanging or farming on behalf of others actually occurs, the land transfer relationship between the two parties is established. As long as the land transfer is the true intention of both parties and does not harm the interests of others, the oral agreement should be considered legal and valid.
Two, the land transfer is not reported for the record of the dispute case
Article 37 of the Rural Land Contract Law stipulates that the transfer of land contractual management right by subcontracting, leasing, exchanging or other means shall be reported to the employer for the record. However, in reality, due to the relative lack of legal knowledge of rural land contractors and the influence of rural habits, rural contracted land transfer is often not reported to the employer for the record. As a result, there is a dispute in practice that the employer or one party of the exchange requests to confirm that the land transfer contract is invalid only because the land transfer has not been reported for the record.
The author believes that the legal meaning of filing is naturally different from that of approval or consent. According to the provisions of the Rural Land Contract Law, among the four common modes of land management right transfer, except the transfer of land management right must be approved by the employer, the exchange, subcontracting and lease do not need the consent of the employer, but only need to be reported for the record. It can be seen that the transfer of contracted land is completely decided by both parties, and the filing is to facilitate the transfer management of land management rights and play the role of notification, registration and reference. According to the provisions of Articles 13 and 14 of the Supreme People's Court's Interpretation on Applicable Legal Issues in the Trial of Rural Land Contract Disputes, if the land contractual management right is transferred by means of transfer, the transfer contract is invalid without the consent of the employer. However, the contracted land management right is transferred by subcontracting, leasing or exchange. Without the consent of the employer, the validity of the contract will not be affected. Therefore, in the trial practice, if the employer or the exchange party requests a judgment to confirm that the contract is invalid only because the land subcontract, lease and exchange have not been reported for the record, it should not be supported.
Three, the land exchange period is unknown dispute cases.
In the dispute of rural contracted land transfer, there are two different ways to determine the specific contract term because of the different land transfer methods. First, if the contracted land is transferred by subcontracting, leasing, breeding, etc., and the transfer period is not agreed, there is little controversy in practice. According to the provisions of Article 17 of the Supreme People's Court's Interpretation on Applicable Legal Issues in the Trial of Rural Land Contract Disputes, it can be handled with reference to the provisions of Article 232 of the Contract Law. Secondly, if the contracted land is transferred by exchange, and the transfer period is not agreed, there is no corresponding provision in the explanation. There are different understandings in practice: some people think that it should also be handled in accordance with the provisions of Article 232 of the Contract Law, that is, the parties can request to terminate the contract at any time; Some people think that the term of the swap contract should be determined according to the term of the rural land contract. During the period of rural land contract, the parties may not claim to terminate the exchange contract.
Land management law: Article 16 Disputes over land ownership and use rights shall be settled by the parties through consultation; If negotiation fails, it shall be handled by the people. Disputes between units shall be handled by the people's courts at or above the county level; Disputes between individuals and between individuals and units shall be handled by people at the township level or above the county level. If a party refuses to accept the decision, he may bring a suit in a people's court within 30 days from the date of receiving the notice of the decision. Before the dispute over land ownership and use right is settled, neither party may change the status quo of land use.
Have you ever heard of the word cemetery? It is the custom in some parts of China to set up cemeteries where future generations will be buried. Of course, when there is no room, some people will go out to set up another ancestral grave and build another cemetery. Burying a person is probably not done in many places. This and the contracted land are two different things and cannot be confused.
The legal fees for land dispute cases generally vary from region to region, as follows:
Cases without property disputes: for ordinary civil, economic and administrative cases that do not involve property, according to the nature, complexity and working time of the case, the fee is between 6000- 100000 yuan through negotiation; If foreign-related civil, economic and administrative cases do not involve property, the agency fee shall not be less than 20,000 yuan;
Lawyers are divided into the following categories.
The first type: general agent. Acting for clients in accordance with lawyers' professional ethics and safeguarding the rights of clients. Generally 3-5% of the subject matter of the dispute. If the goal is high, it can also be lower than this ratio.
The second type: risk agency. Paying the agency fee according to the percentage of the winning amount or the amount won, or paying the agency fee according to the percentage of the reduced payment, is of course higher than the general agent.
The third type: semi-risk agent. Given a certain basic cost, the rest is calculated according to the risk agent, which is of course between the proportion of general agent and risk agent.
Rural land disputes should be settled by arbitration in the land department first, and those who refuse to accept the arbitration can go to court.
Article 51 of the Law of People's Republic of China (PRC) on Rural Land Contract, in case of any dispute arising from land contract management, both parties may settle it through consultation, or request the villagers' committee and the township (town) people to mediate.
Whether the ownership dispute can be handled as a rural land contract management dispute case refers to the civil dispute between the land contractor and the employer in the aspects of contract performance, transfer or inheritance of the contract management right and infringement of the contract management right. After the implementation of the Rural Land Contract Law, there is an independent legal procedure to deal with disputes over land contract management, and the legal relationship of land contract management has become a new civil legal relationship separated from other land legal relationships. Land ownership dispute refers to the dispute between units, individuals or units and individuals who claim land ownership because of unclear land ownership or use right and each unit has no legal and valid ownership certificate. According to the provisions of China's land management law, the procedures for handling land ownership disputes are as follows: first, the parties concerned negotiate to solve them; If negotiation fails, it shall be handled by the applicant; If you are dissatisfied with the people's decision, you can bring an administrative lawsuit to the court according to law.
From the relevant provisions of the Land Contract Law and the Land Management Law, the main differences between land contract disputes and land ownership disputes are as follows: First, the vast majority of land contract disputes are civil disputes, which reflect the characteristics of civil legal relations, while land ownership disputes are mostly administrative disputes, which are more manifested as administrative legal relations; Second, the handling and trial of land contract disputes should be carried out in accordance with the procedures stipulated in the rural land contract law and the civil procedure law, while the handling and trial of land ownership disputes should be carried out in accordance with the procedures stipulated in the land management law and the administrative procedure law; Thirdly, the rural land contract law does not stipulate the administrative procedures for handling land contract disputes, while the land management law clearly sets the administrative procedures for handling land ownership disputes; Fourth, according to the second paragraph of Article 1 of the Interpretation, that is, if members of collective economic organizations may cause administrative disputes and administrative litigation because they have not actually obtained the right to contracted management of land, they shall apply to the relevant administrative departments for settlement. However, this judicial interpretation does not stipulate the administrative reconsideration procedure for such disputes, while the Administrative Reconsideration Law and relevant judicial interpretations in the Supreme People's Court clearly stipulate the pre-administrative reconsideration procedure.