Can two brothers apply for a homestead if they divide their households?

Legal subjectivity:

1. Can I still apply for homestead land if I have land after household division?

According to Article 40 of the "Implementing Rules of the Interim Regulations on Real Estate Registration" It stipulates that those who have obtained the right to use homestead land in accordance with the law can apply for registration of the right to use homestead land separately. Those who use homestead land to build housing and ancillary facilities in accordance with the law can apply for homestead use rights and house ownership registration.

1. The so-called rural homestead refers to the land used by individual rural villagers to build residences (including houses, kitchens, livestock pens, toilets and courtyards, etc.) with approval in accordance with the law.

2. Homestead land is collectively owned, and rural villagers only have the right to use it. The right to use homestead land is protected by law, and no unit or individual may embezzle, buy or sell it, or transfer it illegally in other forms.

3. All new and old rural homestead sites should be registered by the land management department of the county-level people's government. The county-level people's government will issue a "Land Use Certificate for Collective Land Construction" and pay land use fees in accordance with national regulations. Registration fee to confirm usage rights.

4. Each rural villager household can only have one homestead. When applying for a homestead, rural villagers must meet one of the following conditions:

(1) Current housing affects townships (towns) and villages. Construction planning requires relocation and reconstruction;

(2) Except for one child left by a rural household, the other children really need to establish separate households and the existing homestead is lower than the household standard;

(3) With the approval of the competent department, farmers who have moved in from other places have no housing;

(4) Technical personnel recruited by collective organizations require to settle in the local area and their household registration has been moved;< /p>

(5) Retired, retired, retired cadres and workers, retired servicemen and overseas Chinese, their relatives, and compatriots from Hong Kong, Macao and Taiwan who have returned to their hometowns to settle down with legal certificates and need to build houses but do not have homesteads.

5. Under any of the following circumstances, homestead land shall not be arranged

(1) After selling, renting or illegally transferring the existing residence in other forms, then applying for homestead land;

(2) One child (female) in a household has more than one homestead (including one);

(3) The household registration has been moved out and no longer lives locally;< /p>

(4) Those who are under 18 years old and do not meet the conditions for household splitting;

(5) Although they live in rural areas, their household registration has not been moved to the local area;

< p>(6) Other regulations prohibit building houses and arranging homestead sites.

6. If rural villagers need to use homestead land to build residences, they should submit a written application to the village committee. The village committee should publish the list of household owners, land area, location, etc. for homestead land, and listen to the opinions of the masses. After review and approval, the list of household heads will be published and submitted. The applicant will fill in the (Rural Homestead Application Form) and submit it to the township people's government for review.

7. Approval procedures for rural homestead land:

(1) Application.

The applicant shall submit a written land use application to the local village committee with the application materials. The village committee should collect application materials every quarter, convene a village committee or villagers' congress in accordance with the law to review, and publish the list. If the villagers of the village do not raise any objections or the objections are not established within 15 working days from the date of the list, report it to Submit to the township land and resources office for preliminary review.

(2) On-site investigation.

The township (town) people's government organizes the land and resources office to conduct on-site surveys and mass surveys, review the land for housing and construction application conditions, and prepare survey records and review opinions.

(3) Fill in the application form.

The Office of Land and Resources will issue the "Application Form for Residential Land and Construction of Rural Villagers" after passing the preliminary review.

(4) Village committee review.

The village committee will review and sign an opinion on the "Application Form for Residential Land Use and Construction of Rural Villagers" submitted by the applicant, certifying the applicant's original residential land use and current living situation of family members, and the person in charge will sign , and at the same time stamp the official seal of the village committee and submit it to the township (town) people's government for review.

(5) Review and report.

After receiving the application materials for residential construction land submitted by the village committee, the township (town) people's government will complete the review and determine the scope of planned land on site, and submit it to the county Land and Resources Bureau for preliminary review. The county land and resources bureau will report the projects that meet the approval conditions to the county people's government.

(6) Approval.

If the county people's government approves the use of land, the county Land and Resources Bureau will issue a "Construction Land Approval Letter".

(7) Staking out.

The Institute of Land and Resources will take the lead and coordinate with township and town government personnel to stake out the field in accordance with the "Construction Land Approval Letter" and "Village and Town Construction Project Planning Permit", delineate the scope, fill in the "Stakeout Record Card", stake out the participants The "Stakeout Record Card" should be signed. Only after staking out the land can the applicant start construction.

(8) Acceptance and certification.

To build, renovate or expand a rural villager's residence, one must apply for initial land registration or change registration procedures and house property rights registration procedures in accordance with the law within 30 working days from the date of completion acceptance of the house, and obtain land use rights. certificate and house ownership certificate.

2. How to cancel the homestead land certificate

The cancellation process of the homestead land certificate is as follows:

1. First go to the national tax to get the form: according to the requirements of the national tax After filling in, signing, stamping, paying off the invoice, and paying taxes, it will take back the national tax registration certificate and give you a national tax tax registration cancellation notice.

2. Take the tax registration cancellation notice from the national tax and go to the local tax to get the form. After paying the tax, it will take back the local tax tax registration certificate and give you a local tax tax registration cancellation notice.

3. Take two notices and close the bank account. Land certificate is the legal basis for land owners or land users to enjoy land ownership or use rights. The land certificate is the legal proof that the land owner has the right to use the land according to law. A house should have a house ownership certificate and a land use right certificate. Only when both certificates are complete can it be considered as having complete rights. All units and individuals that have obtained the right to use state-owned land in accordance with the law can apply for a land certificate from the land administration department.

3. How to deal with homestead transfer disputes

1. The agreement depends on the specific signing party

The effectiveness of the homestead transfer agreement depends on the specific signing party , if the homestead land is transferred between members of the collective economic organization, then the agreement is valid; if the homestead use right is transferred to a person outside the collective economic organization without the consent of the collective economic organization, then the agreement is Invalid. Because according to the provisions of the Land Management Law, homestead land belongs to the collective economic organization. In order to meet the housing and living needs of the members of the collective economic organization, it cannot be transferred to members outside the collective economic organization.

2. The legal consequence of the invalidity of the agreement is restoration to the original status quo

According to the provisions of the Contract Law, the legal consequence of the invalidity of the agreement is restoration to the status quo ante. However, due to the basic rights of residence and survival of the persons involved in the relationship Therefore, blindly restoring the original condition is not conducive to solving the problem. Therefore, Shanghai has adopted a flexible approach. If the house has not been delivered for use, it will be restored to its original condition; if the house has been delivered to the buyer for living and use, then it will be handled based on the principle of respecting and maintaining the status quo. , reject the property owner’s request for the purchaser to move out.

3. What to do if demolition occurs

If demolition occurs after the homestead transfer agreement is signed and performed, the court can directly decide the ownership of the relocation funds between the two parties. For disputes involving the purchaser, if the purchaser is organized by a collective economic organization, then the relocation funds will belong to the purchaser. If the purchaser is not a member of the collective economic organization or even has an urban household registration, then the relocation funds will be distributed according to the 37-7 rule. Principle processing.

To sum up, if you still have land after household division, whether you can apply for a homestead depends on whether you meet the conditions stipulated in the above laws. The law is objective:

Article 13 of the "Rural Homestead Management Measures" If one of the following circumstances occurs, you can apply for homestead: (1) Relocation due to national or collective construction, immigration, disaster, etc. , rebuilt; (2) The implementation of city, village and market town planning or the reconstruction of old villages requires adjustment and demolition; (3) The area of ??the existing homestead land has not yet reached the limit standard stipulated in these measures and needs to be rebuilt and expanded; (4) It has The conditions for household splitting and the area of ??the original homestead land has not reached the limit standard stipulated in these measures and need to be rebuilt or expanded; (5) With the approval of the county people's government, professional and technical personnel introduced or recruited by rural collective economic organizations really need to settle down in rural areas; (6) Retired, retired, retired employees, demobilized servicemen, overseas Chinese, their relatives, and compatriots from Hong Kong, Macao and Taiwan who return to their places of origin to settle down with legal certificates; (7) Laws, regulations, and rules provide otherwise. Article 14 of the "Rural Homestead Management Measures" If any of the following circumstances apply, the homestead application will not be approved: (1) If the homestead area has reached the standards of these regulations and then applies for a new homestead, but for the purpose of implementing villages and market towns Except for those planning to renovate old villages; (2) Renting, selling or transferring the homestead and above-ground buildings in other forms (except for reasonable adjustments by households lacking housing), or converting the residence to other uses and then applying for homestead; ( 3) After all family members apply for a homestead as one household and are approved, they do not meet the conditions for household division or apply for a homestead by households in an unreasonable manner; (4) The children have already established a household and meet the conditions for household establishment, and their parents apply separately for a homestead. (5) Residential buildings are built on the original homesteads in areas where old villages are planned to be renovated or natural villages are planned to be demolished and merged; (6) Houses that are not needed for living are not demolished and the occupied homesteads are not returned to the village collective. ; (7) The case of illegal house building has not been dealt with and concluded in accordance with the law; (8) Others do not meet the conditions for applying for house construction.