Pingli Garden Property Telephone

On April 8, 2003, Changhe Property Management Company (Party A) and Wang (Party B) signed the Cooperative Building Agreement, stipulating that Party A has a piece of land in Shahe base to cooperate with Party B to build a factory building and supporting dormitory; Party A provides about 1 1,000 square meters of land for flood drainage ditch in Gongjian Village, Shahe, and builds simple workshops and supporting houses. Party B contributes * * to jointly build two single-storey workshops with an area of about 763 square meters and a single apartment with a second floor of about 280 square meters; According to the land use regulations of Gongjian Village in Shahe, the first cooperation period is five and a half years, that is, from June 2003 to February 3, 2008. After the first installment expires, if the government does not requisition this place, both parties will continue the contract; During the first cooperation period, 30% of the construction area will be used by Party A and 70% by Party B; After the expiration of the first phase, the government will not expropriate the land, and the land use right will be redistributed. Both parties have the right to use 40% and 60% of the construction area respectively. And other content.

On June 12, 2009, Changhe Property Company (Party A) and Chuanjin Company (Party B) signed a supplementary agreement, stipulating that, after calculation, Party A and Party B will jointly build two houses, one single dormitory building with a construction area of 392.8 1 m2, and two warehouses with a construction area of 253 m2. The date of redistribution is from June 65438+1October12009; After redistribution according to the agreement, Party A owns 40% of the construction area (258.32 m2) and Party B owns 60% of the construction area (387.48 m2); And other content. Changhe Property Company refused to recognize the supplementary agreement, thinking that Changhe Property Company did not sign the agreement, but said that it would not apply for the identification of the official seal of Changhe Property Company in the agreement.

In the trial of the original trial, Changhe Property Company submitted the following evidence to prove that Changhe Property Company owns the property involved:

1.On April 26th, 2008, the General Office of the Shenzhen Municipal People's Government (hereinafter referred to as the General Office of the Municipal Government) issued the Minutes of the Meeting on Issues Concerning the Study of Nanshan and Shahe Gongjian Village, with the following contents: the land of Shahe Gongjian Village was agreed to be reclaimed, and the land of Nanshan Gongjian Village was planned to be built into an affordable housing community; It is agreed that the existing land in Nanshan Gongjian Village will be listed for sale.

2. On August 30, 2009, the general office of the municipal government issued the Minutes of the Meeting on Studying the Reconstruction Project of Nanshan Gongjian Village, the contents of which are as follows: It is agreed that the reconstruction project of Nanshan Gongjian Village is a government-guaranteed housing project, and the Municipal Housing and Construction Bureau is responsible for organizing and implementing it. And invited the Municipal Planning and Land Commission to handle the project land in the name of the Municipal Housing and Construction Bureau, which entrusted the Municipal Construction Industry Association to set up a special project company to be responsible for the agency work; After completion, the Municipal Housing and Construction Bureau is responsible for the sales of construction enterprises in Nanshan and Gongjian Village of Shahe. When selling, the land development fee will be charged according to the affordable housing policy with reference to 23% of the land price; Municipal Housing and Construction Bureau should comprehensively consider the scale, contribution, demolition area, land area, investment ratio of construction funds and other factors of the existing 29 construction enterprises in Shahe and Nanshan Gongjian Village when the project is targeted for sale. By then, the property rights of houses will be owned by enterprises collectively, and the construction enterprises with the property rights of affordable housing will withdraw from Shenzhen, and their affordable housing will be acquired by the government after depreciation at the sales price.

3. Investor Agreement on the Establishment of Shenzhen Construction Engineering Development Co., Ltd., which reads: All shareholders voluntarily apply for the establishment of a limited liability company with the name of "Shenzhen Construction Engineering Development Co., Ltd."; The business scope of the company is the comprehensive renovation and development of Gongjiancun project in Nanshan, Shenzhen, which is sold to all shareholders at the development cost according to the government housing allocation plan; The company has 29 shareholders, of which Changhe Property Company contributed 2.6 million yuan.

4. Confirmation of Status Quo of Shenzhen Changhe Property Management Company Nanshan Gongjian Village Production and Living Base Phase I, Confirmation of Status Quo of Shenzhen Changhe Property Management Company Nanshan Gongjian Village Production and Living Base Phase II and Confirmation of Status Quo of Shenzhen Changhe Property Management Company Shahe Gongjian Village Production and Living Base signed by Changhe Property Management Company and Shenzhen Construction Industry Association on April 1 2009 respectively.

5.2065438+On July 22, 2003, Shenzhen Gongjian Real Estate Development Co., Ltd. issued the Confirmation of Reconciliation of Construction Capital Investment in Shenzhen Nanshan Gongjian Village Reconstruction Project.

6. The Confirmation of the first-phase house lottery allocation, which states that the houses allocated by Changhe Property Management Company are: 4 buildings with 2-4 floors, with an area of 1385.76 square meters; 15- 18 floor, covering an area of 2083 square meters; 6 buildings with 8 floors, with an area of 1, 2, 5, 5. Single apartment 1 building 10, 12- 17,19,21-62 room area1991.37. * * * The drawing area is 5805.82 square meters.

7. 1. Confirmation sheet of house key handover for the first phase demolition and resettlement of affordable housing in Gongjian Village, Nanshan, which proves that the house allocated to Changhe Property Company has been handed over to Changhe Property Company by the construction unit. Neither Wang nor Chuanjin Company admitted the authenticity of the watch.

Changhe Property Company said that due to its special qualifications, according to relevant government documents, based on the scale, contribution, land development area, demolition area and start-up of funds to be built of 29 construction enterprises including Changhe Property Company, Changhe Property Company is eligible to allocate the 105 suite source including the property involved. With this qualification, Changhe Property Company and 29 construction enterprises jointly established Nanshan Construction Engineering Development Company. Changhe Property Company is a shareholder of the construction engineering development company, and the property involved has been allocated to Changhe Property Company, which actually received the key of the property involved in August 20 13.

In the trial of the original trial, Changhe Property Company stated that Wang and Chuanjin Company broke into the involved property on 20 14 10/month 1 day; Wang Hechuan Gold Co., Ltd. indicated that it began to enter the property involved on 20 14 1 1. In order to prove that there is a legal basis for Wang and Chuanjin Company to possess the property involved, the defendant Wang and Chuanjin Company submitted the following evidence:

1, 2014 On May 9, 2065438, the minutes of the meeting of the general office of the municipal government on the west section of Metro Line 7 passing through four shops in Pingli Garden, etc., the contents were as follows: "Regarding the buildings that have not been demolished in the development land of Antuoshan parking lot involving the dispute between Changhe Company and Chuanjin Company, please ask the Municipal Housing and Construction Bureau to support and cooperate with the Nanshan District Government and the construction industry association, and suspend the handling of the chief.

2. On July 29th, 2004, Yuan, Wang, Chuanjin Company and Shenzhen Construction Industry Association attended the meeting of cooperative housing distribution in Shahe Village.

3. Minutes of the 20 14, 14,122 extraordinary general meeting of Shenzhen Mayor and Property Management Co., Ltd.. The contents are as follows: this meeting mainly negotiated with Wang (Chuanjin Company) on the cooperative housing agreement signed by Changhe Property Company and its subsequent supplementary agreement, and reached the following opinions; In order to actively cooperate with the government project, the shareholders of Changhe Property Company are willing to maximize profits and agree to allocate 7 single apartments to Wang (Chuanjin Company) at a unit price of 6,426 yuan per square meter according to the tentative cost of Nanshan Village Phase I affordable housing fund. As the investment money has been paid in advance by Changhe Property Management Company, Wang (Chuanjin Company) should pay off the house purchase money and capital cost in the same period, and the final payment will be refunded more and supplemented less according to the final settlement price of the first installment.

The court of first instance held that

According to the provisions of Articles 34 and 35 of the Property Law of People's Republic of China (PRC), "If the real estate or chattel has no right to possess, the obligee may request the return of the original." If the property right is damaged or may be damaged, the obligee may request that the obstruction or danger be removed. In this case, Changhe Property Company asked Wang Hechuan Gold Company to return the property involved and eliminate the obstruction on the grounds that it had no right to possess the property involved. According to Article 9 of the Property Law of People's Republic of China (PRC): "The establishment, alteration, transfer and extinction of the real right of immovable property shall take effect after being registered according to law; Without registration, it has no effect. " In this case, the property involved has not been licensed, and the relevant evidence submitted by Changhe Property Company can only prove that its possession of the property involved has a legal basis, but cannot prove that it has obtained the ownership of the property involved according to law, that is, the evidence submitted by Changhe Property Company is not enough to prove that Changhe Property Company is the right holder of the property involved. Although there is no legal basis for Wang and Chuanjin Company to occupy the real estate involved, Changhe Property Company is not the actual obligee of the real estate involved, and has no right to ask Wang and Chuanjin Company to return the real estate involved and compensate its losses, so the court of first instance does not support Changhe Property Company's claim.

Court of first instance judgment

Reject all claims of Shenzhen mayor and property management co., ltd. ..

The plaintiff refused to accept the appeal.

The court of second instance held that

The Shenzhen Intermediate People's Court held in the second instance that according to the first paragraph of Article 245th of People's Republic of China (PRC) Property Law, the possessor has the right to request the return of the original property; The possessor has the right to request the removal of the obstruction or danger for the act that hinders possession; If the damage is caused by occupation or obstruction, the possessor has the right to claim damages. " In addition to the substantive right holder, the possessor also has the right to request the return of the original object, remove obstacles or eliminate dangers. The appellant Changhe Property Company in this case is not the owner of the house involved, but the relevant evidence submitted by it proves that it enjoys legal possession of the house involved. The appellee Chuanjin Company has no legal basis for the possession of the house involved, which infringes the appellee's possession right of Changhe Property Company. Therefore, the appellant Changhe Property Company has the right to request the appellee Chuanjin Company to return the original property. The court of first instance applied legal errors, and our court corrected them. Because the appellee Wang is the legal representative of the appellee Chuanjin Company, and there is no evidence to prove that Wang personally owns the property involved, the legal consequences arising from his actions should be borne by the appellee Chuanjin Company. Therefore, there is no legal basis for the appellant and the property management company to ask Wang to undertake the obligation of returning the original property, and our court rejected it.

On the issue of compensation for losses. According to the Notice of Shenzhen Housing and Urban-Rural Development Bureau on Issues Concerning the Rent Standard for the Relocation and Resettlement of Affordable Housing in Nanshan Gongjian Village (Phase I) submitted by the Appellant, the property involved is affordable housing, which can only be rented to employees who do not own any form of housing in this city, do not receive housing subsidies or are receiving talents' living rental subsidies. The list of rented employees must be reported to the Residential Leasing Management Service Center of Shenzhen Housing and Urban-Rural Development Bureau for the record. Due to the restrictions on the lessee, the house involved cannot be rented at will, and the appellant and the property management company have not submitted relevant evidence to prove that the house involved has been allocated to employees for rent. Therefore, according to the rules of civil evidence, there is no factual basis for the losses claimed by the appellant and the property management company, and our court does not support them.

Judgment of the court of second instance

1. Revoke the civil judgment of Shenzhen Nanshan District People's Court (20 15) Shennan Famin Sanzichu No.274;

2. The appellee Chuanjin Company moved out of eight rooms (1Building 3/Rooms KLOC-0/55 to 162) located on the first floor of the indemnificatory housing community in Gongjian Village, Nanshan District, Shenzhen within ten days from the effective date of this judgment, and returned the eight rooms to the appellant Chang and the property management company.

Three. Reject the appellant Changhe Property Company's other claims.

The defendant refused to accept and applied for a retrial.

Chuanjin Company refused to accept it and applied to Guangdong Higher People's Court for retrial: according to the cooperative housing agreement signed by Chuanjin Company and Changhe Company on April 8, 2003, 30% of the construction area involved was used by Changhe Company and 70% by Chuanjin Company, and both parties enjoyed equal rights and obligations. After that, the two parties signed the Supplementary Agreement on June 12, 2009, stipulating that the two parties should redistribute the real estate, and Chuanjin Company will have the right to use 60% of the construction area. Then, Changhe Company accepted the relocated property belonging to Chuanjin Company without authorization. Chuanjin Company contacted many times, but it was fruitless. In the case that there was no way to ask for help for many times, Chuanjin Company occupied 8 sets of houses involved in the case that should have the right of relocation and resettlement according to the principle of private relief, which was far from the allocated construction area of 455.6 square meters. Without finding out the facts of the case, the court of second instance wrongly applied the first paragraph of Article 245 of People's Republic of China (PRC) Property Law, and found that Changhe Company had the right to occupy the house involved, which seriously damaged the legitimate rights and interests of Chuanjin Company. Accordingly, apply for retrial to cancel the judgment of the second instance, and change the judgment to reject the lawsuit of the company and the company according to law. All litigation costs in this case shall be borne by Changhe Company.

Guangdong provincial high court retrial that

This case ruled out the obstruction dispute, and the focus of the dispute was whether Chuanjin Company should return the eight houses involved to Changhe Company. In this case, although Changhe Company was not registered as the owner of the house involved, the relevant evidence submitted by Changhe Company fully proved that it enjoyed the legal possession of the house involved, while Chuanjin Company occupied the house involved without providing legal basis, which violated the rights of Changhe Company. According to the first paragraph of Article 245th of People's Republic of China (PRC) Property Law, the possessor has the right to request the return of the original; The possessor has the right to request the removal of the obstruction or danger for the act that hinders possession; If damage is caused by encroachment or obstruction, the possessor has the right to claim damages. "It is not improper to decide that Chuanjin Company will return eight houses involved to Changhe Company.

Guangdong Provincial High Court ruled that

Reject the retrial application of Shenzhen Chuanjin Construction Labor Service Co., Ltd. ..

Lawyer's statement

1, cooperative housing, although not registered as the legal owner of the house involved, has the right to ask the investor to return the relocated house whose allocation is disputed in the form of private relief;

2. After the demolition of cooperative housing, the land provider legally occupies the relocated house, and the investor, on the principle of private relief, wants to occupy the relocated house with disputed distribution, which has no legal basis and should be returned;