(A) Overview of disputes over the right to live in public houses
Among many disputes involving public houses, the dispute over residence right (reflected in litigation, that is, demolition dispute) is a prominent dispute type with high difficulty in mediation. The parties to this kind of dispute are generally members of the same family, and the situation is complex and diverse, which is mainly manifested in the following three forms: First, the dispute over the right of residence caused by the illegal occupation of public houses by other family members who are not roommates, such as the fact that the adult married children's units have allocated housing or bought commercial houses outside, but they still occupy the public houses rented by their parents on the grounds of inconvenient work and children's difficulties in studying, which leads to contradictions. The second is the dispute caused by the tenant of public housing infringing on the right of residence of the same person. For example, in the process of public housing relocation, the lessee signed a monetized resettlement agreement with the demolished, but refused to resettle other family members who had no room to live after receiving the money; Or when the lessee transfers the lease right of public housing, he promises to solve the housing problem with his roommate in exchange for his signature, but he ignores the housing problem of his roommate afterwards, thus causing disputes. The third is the dispute over the right of residence arising from the normal use of public houses. For example, parents are public housing tenants, and children or other relatives are not illegally possessed, but meet the requirements of cohabitants. However, due to the great contradiction between the two sides and the relatively small house, one party asked the other party to move out of the house.
To deal with such disputes, we should focus on three factors: first, the source and contribution of the house. Public houses are allocated by units. It is necessary to check the original allocation, who is the allocated person, who is the allocated population, and how many people are allowed to move into the household registration; If you buy public houses from the market, you need to analyze the purchase motivation, capital contribution and household registration. The second is to investigate and grasp the identity of the same person. For those who have enjoyed the national welfare housing allocation policy or the unit monetary housing allocation subsidy, and their lives are not difficult, we must strictly grasp the conditions for identifying their roommates and reflect the sanctions against those who illegally occupy public houses. The third is the practical feasibility of moving out. In the case of disputes over the right of residence between the two parties, if one party has something to move, it may, as appropriate, ask the other party to move on the basis of compensation to avoid intensification of contradictions. Of course, if one party maliciously occupies public houses and sells his house to others, resulting in the status quo of no room to live in, it should not give too much consideration to the practical feasibility of moving out, but should let the infringer move out immediately and solve the housing problem by himself.
(two) the principles and methods of public housing dispute mediation.
1. Accurately grasp the meaning of living together.
According to the definition in the second opinion of Shanghai Real Estate Bureau on the implementation of Shanghai Housing Lease Regulations, * * * cohabitant refers to the person who has actually lived in the rented house for more than 1 year (except in special circumstances) when the lessee of public housing dies or changes the lease relationship, and has no other housing or other housing in this city but has difficulties in life, and can get married and have children without the above conditions. The definition of cohabitant in this clause has the following characteristics: first, the applicable situation is when the lessee dies or the lease relationship changes; Second, it is not required to have a permanent residence in this city or other places; Third, if the original lessee, cohabitant's spouse and children actually live there because of marriage and childbirth, they may not be restricted by the above-mentioned 1 year and other housing conditions. * * * Cohabitants include not only cohabitants in public rental houses, but also cohabitants in property houses. Therefore, an accurate understanding of the concept of cohabitant is helpful to clarify the relevant rights and obligations in the process of mediation.
2. Realize the conversion of residence right in a flexible way.
In some disputes, all family members in the house have the right to live, but they can't continue to live together because of the deterioration of their relationship. Therefore, flexible mediation can be adopted to solve disputes and protect the legitimate rights and interests of all parties. The first is to realize the separation between the right of residence and the actual living conditions. For example, if a child who has the right to live in public houses buys another set of commercial houses outside, he can settle down to live in a self-purchased commercial house on the premise of confirming his right to live in public houses, and his parents will ensure that his children will enjoy rights and interests in the future demolition of public houses; The second is to reasonably arrange for family members to move out of their places of residence by changing rooms. For example, a large-sized house can be replaced by two small-sized houses for families to live separately to avoid conflicts; Third, if you can't change rooms, you can give some monetary compensation to family members who have the right to live but can't live together, and you can move out of the house on this premise.
(3) the legal provisions of the dispute over the right to live in public houses.
The people of China and the elderly in China
Law on the Protection of Rights and Interests (Excerpt)
(1 adopted at the 21st meeting of the Standing Committee of the Eighth NPC on August 29th, 1995, and implemented as of1June+10/October1day, 1996).
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Thirteenth supporters should properly arrange housing for the elderly, and may not force the elderly to move to houses with poor conditions.
Children or other relatives may not occupy the houses owned or leased by the elderly, and may not change the property rights or lease relationship without authorization.
Old people have their own houses, and their supporters have the obligation to maintain them.
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Regulations of Shanghai Municipality on the Protection of the Rights and Interests of the Elderly (Excerpt)
(1adopted at the 4th meeting of the Standing Committee of the 11th Shanghai Municipal People's Congress on August 8, 1998, and effective as of 1999 10)
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Fourteenth elderly people have the right to possess, use, benefit and dispose of their legitimate income and other property according to law, and children or other relatives may not interfere.
The elderly have the right to refuse financial assistance from adult children who have the ability to live independently. Adult children or other relatives may not extort or deduct the property of the elderly for unemployment or other reasons.
The elderly have the right to inherit the inheritance of their parents, spouses, children or other relatives according to law, and have the right to accept gifts. Children or other relatives shall not embezzle, rob, transfer, conceal or destroy the inheritance that should be inherited by the elderly.
Children or other relatives shall not interfere with the elderly to make a will to dispose of personal property or sign a legacy and support agreement with others according to law.
Fifteenth supporters shall properly arrange housing for the elderly, and shall not force the elderly to move to poor housing conditions.
Children or other relatives may not occupy the houses owned or leased by the elderly, and may not change the property rights or lease relationship without authorization. The undertaker of the housing and land management department or the public security department shall obtain the consent of the elderly and check the written materials signed by the elderly when handling the formalities of housing transfer, transfer, exchange and household registration for the elderly.
The elderly, their children or other relatives * * * own houses purchased and built, and the elderly enjoy corresponding housing ownership and residence rights according to law. Children or other relatives who invest in the housing that their children originally rented or lived in shall sign a written agreement to ensure the right of the elderly to continue living.
Children or other relatives who borrow the houses of the elderly with the consent of the elderly shall return them in time without undue delay.
Children or other relatives living in elderly people's own housing have been allocated or purchased by the unit. If the elderly do not agree to continue living, they should move out in time.
Where the children's units allocate housing or relocate or rebuild housing, including the share of the elderly, the elderly enjoy the same rights as their children.
Old people have their own houses, and their supporters have the obligation to maintain them.
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People's Republic of China (PRC) Property Law (Excerpt)
(Adopted at the Fifth Session of the Tenth National People's Congress on March 16, 2007 and implemented on March 10/day, 2007)
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Chapter III Protection of Real Rights
Article 32 Where a property right is infringed, the obligee may settle it through conciliation, mediation, arbitration and litigation.
Article 33 If there is a dispute over the ownership and content of the real right, the interested party may request confirmation of the right.
Article 34 Where a creditor has no right to possess a realty or chattel, the creditor may request the return of the original property.
Article 35 Where the real right is damaged or may be damaged, the obligee may request that the obstruction or danger be removed.
Article 36 Where a realty or chattel is damaged, the obligee may request to repair, redo, replace or restore it to its original state.
Article 37 If the infringement of property rights causes damage to the obligee, the obligee may demand compensation for the loss or bear other civil liabilities.
Article 38 The methods of protecting property rights stipulated in this chapter may be applied separately or in combination according to the situation of infringement of rights.
Infringement of property rights, in addition to civil liability, in violation of administrative regulations, shall bear administrative responsibility according to law; If a crime is constituted, criminal responsibility shall be investigated according to law.
Part II Ownership
Chapter IV General Provisions
Article 39 The owner shall have the right to possess, use, profit from and dispose of his real estate or chattel according to law.
Article 40 The owner has the right to establish usufructuary right and security right on his real or movable property. When exercising their rights, the usufructuary right holder and the security right holder shall not harm the rights and interests of the owner.
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Article 64 A private person shall have the ownership of his lawful income, house, articles for daily use, tools for production, raw materials and other immovable and movable property.
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Article 66 The lawful property of a private person is protected by law, and it is forbidden for any unit or individual to occupy, plunder or destroy it.
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Article 106 Where a person who has no right to dispose of a realty or chattel transfers it to an assignee, the owner has the right to recover it; Unless otherwise provided by law, in any of the following circumstances, the transferee obtains the ownership of real estate or chattel:
The transferee is in good faith when accepting real estate or movable property;
(2) Transfer at a reasonable price;
(3) The transferred immovable property or movable property that should be registered according to law has been registered, and the transferred immovable property or movable property that does not need to be registered has been delivered to the transferee.
If the transferee obtains the ownership of real estate or chattel in accordance with the provisions of the preceding paragraph, the original owner has the right to claim compensation from the unauthorized person.
Where the parties have acquired other real rights in good faith, the provisions of the preceding two paragraphs shall apply mutatis mutandis.
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(four) public housing right dispute cases.
Cannot live continuously 1 year.
Become a cohabitant in public houses.
Wei is a little wife. 1987, the Wei couple obtained the lease right of Meilong No.2 Village in this city through deployment, and the lessee's name was Wei. 1990, Wei obtained the lease right of a house on Jiangning Road in this city through the house exchange in Meilong Second Village, and the name of the lessee was Wei. During the period of 1997, Wei's husband moved his household registration from Meilong Village to Jiangning Road in this city, considering that his house might be relocated in the future. The housing in Meilong Village is a public housing shared by Wu Mou and his eldest son, Wu Mou.
In February, 2006, Wu Mou filed a lawsuit with the court, demanding confirmation that he has the right to live in the house on Jiangning Road in this city. Wei argued that although his household registration was in Jiangning Road, he never lived in the house, but lived in Meilong Village. Wu Mou is not a cohabitant of Jiangning Road House, and does not agree with Wu Mou's petition.
The court held that, according to the Regulations of Shanghai Municipality on Housing Lease and the relevant interpretation of "* * * cohabitant" by Shanghai Housing and Land Resources Administration, "* * * cohabitant" refers to a person who has actually lived and lived in public housing for more than 1 year (except in special circumstances), and has no other housing or other housing in this city but has difficulties in life, and can get married and have children without the above conditions. Combined with the actual situation of this case, firstly, Wu Mou enjoys the state-allocated public houseNo. 1992, and has become the * * * cohabitant of the house in Meilong Village. Secondly, although Wu Mou's household registration is in the house involved, according to Wu Mou's statement, he takes turns to live in the houses in Meilong Village and Jiangning Road. Therefore, Wu Mou did not regard the house involved as a long-term stable residence, and the actual residence time in the house involved did not reach 1 year. Thirdly, there are no special cases of marriage and childbirth mentioned in the above explanation in Wu Mou. Therefore, Wu Mou is not the cohabitant of Jiangning Road House in this city. Therefore, the court rejected Wu Mou's claim.
Does the lessee of public housing have the right to lease when he becomes a citizen of another country?
And may are husband and wife. In the 1980s, the Zhu family went abroad to settle in Canada. A house rented by Yi Zhu in Nanjing West Road was occupied by Mei for some reason, and the household registration of Yi Zhu's daughter Hou remained in the contested house. A few years later, Yi Zhu obtained Canadian citizenship. 1June, 990, the household registration was cancelled. In June of the same year, 5438+065438+ 10, Jia Zhu's household registration was reported to the contending room of the department. 1997, Yi Zhu returned to China to visit relatives, without any objection. From June 5438 to February 2000, Mei's household registration was also reported to the department. In April 2006, the land belonging to the disputed house was demolished. On April 6th, 2006, Jia Zhu, Mei and a real estate development company in Shanghai signed the Agreement on Compensation and Resettlement for Demolition of Urban Residential Houses in Shanghai (house exchange with applicable value standards). In the column of Party B's demolition, it is indicated that the lessee of the house is Yi Zhu, and the signature of Party B who signed the agreement is Mei. According to the agreement, Party A (the demolition party) shall compensate Party B in monetary amount of 8,565,438 yuan+0,383 yuan; Party A places Party B's house in Yanping Road, Shanghai, with a construction area of 65,438+020.29 square meters and a total price of 65,438+047,265,438+047 yuan; The difference between resettlement house and monetary compensation is 620764 yuan. Other matters agreed in the agreement, according to Party B's requirements: the property owner of a house on Yanping Road is Mei (the original lessee Yi Zhu has settled in Canada). On the same day, Jia Zhu and Mei issued a letter of commitment, claiming that the original tenant, Yi Zhu 1984, went to Canada to settle down in March and has now lost contact; If disputes arise from relocation in the future, we are willing to settle them properly through consultation according to the relevant documents of the municipal government. Later, Mei and the demolition party fulfilled the demolition agreement. Now Yi Zhu claims to the court that Mei and the demolition unit should pay compensation and resettlement fee of 963,297 yuan, on the grounds that Yi Zhu is the lessee of the disputed house, and the relocation and resettlement fee of the house should be owned by Yi Zhu.
After hearing the case, the court held that Yi Zhu cancelled his household registration in 1984, went to Canada to settle down, and obtained Canadian citizenship several years later. According to the relevant provisions of Shanghai Housing Lease Regulations, as long as the tenant's household registration moves out of the city, residents in the tenant can apply for changing the lease right without obtaining the consent of the original tenant. When the house was demolished in April 2006, considering that the name of the leased house had not changed, the demolition unit signed an agreement with the actual residents Jia Zhu and Mei, while retaining the rights of Yi Zhu, and said that the share of Yi Zhu would be settled by both parties through consultation. The court recognized the opinion of the demolition unit and held that the resettlement of the relocated households should first ensure that the housing problems of domestic citizens are solved, and then balance the interests of all parties. Due to the great differences between the two parties on the specific amount, the court comprehensively considered the above situation, and decided that Zhu Yi's due relocation and resettlement fee was 200,000 yuan, which was paid to Yi Zhu by Mei and Mei.