Shangke real estate

Can a small property right house become a full member? This topic that has been entangled for many years has come to a conclusion. Last week, the Ministry of Natural Resources issued the Notice on Accelerating the Registration of the Right to Use Homestead and Collective Construction Land, reiterating that illegal land use cannot be legalized through registration. No registration will be granted for building houses by occupying cultivated land indiscriminately, building houses in violation of the red line control requirements of ecological protection, and illegal purchase of homesteads and houses with small property rights by urban residents. Illegal land use may not be legalized through registration.

This official announcement completely shattered the illusions of many property buyers who have already bought small property houses. More than a decade ago, small property houses developed wildly in the urban-rural fringe of the provincial capital, with complex and diverse development backgrounds. What are the prospects of these projects today? How do ordinary buyers distinguish small property houses? Is a small property right house the same as a house with incomplete documents? Are small property houses illegal? After buying a small property right house, how to deal with the dispute in the future?

A small property house/a house with incomplete documents

The concept of "small property right house" has been put forward for more than ten years, and it is synonymous with buildings with incomplete documents in the hearts of all buyers. But in fact, small property houses are illegal buildings, which is completely different from the concept of houses with incomplete documents.

The construction of small property houses can be roughly divided into three types. The first is the house built by villagers on their own homestead and financed by themselves; The second is the unified housing developed and built by village committees and villagers on collective land. Villagers are both builders and shareholders, and they get dividends every year. The third type is the property owned by the developers and collectively owned by the village. This kind of property has reasonable planning and design, professional property services and community support. The third way can improve the living conditions of villagers, and it is also a kind of small property right house that buyers often say, and it is also the most prone to disputes.

There are many kinds of houses with incomplete documents, and small property houses are just one of them. Houses with incomplete documents include: houses developed with collectively owned land, that is, so-called "small property houses"; Without the approval of the project or change the project without authorization; Property without planning approval; Changing the planned real estate without authorization; Property that changes land use without permission; There are disputes over land property rights; Houses without sales license and property right certificate; Housing without acceptance or unqualified acceptance; The land or house is not mortgaged; The developer fails to pay relevant taxes and fees; Land and houses were sealed up by relevant departments.

At present, the act of buying small property houses privately will not be recognized and guaranteed by national laws. A related person from Taiyuan Real Estate Management Bureau said that the official position on the issue of small property houses is: "Dismantle a batch, educate a batch, deal with a batch, shock a batch, blame a batch and warn a batch". According to industry insiders, buyers who want to buy small property houses at low prices need to seriously consider the possible risks of small property houses in the future before buying a house, such as unfinished business, no compensation for demolition, invalid sales contracts, and no way to protect rights. Buy cheap small property houses and hide high risks later.

The transfer of small property houses in the village is legal.

Not all small property transactions are illegal. For example, in rural areas, homestead houses are often sold, and such houses only transfer the right to use and do not buy or sell ownership.

Li Ning, a lawyer of Huamao Silicon Valley Taiyuan Law Firm, told the reporter: "When transferring a small property right house, if the following four points are met, the contract is valid and the transaction is legal. First of all, housing transactions need to be approved by village committees and township governments; Secondly, both the transferor and the transferee are villagers in the village; At the same time, the transferee has no homestead and meets the application conditions for homestead; Moreover, the right to use the homestead cannot be transferred separately, but must be transferred together with the housing. In addition, the transferor's account should have moved out of the village or belong to' one household with multiple rooms or multiple rooms'. If it is a household and a house, it must be clearly stated that it will no longer apply for a homestead, and there is evidence to prove that it has housing security, such as living with other close relatives. " In fact, the sale of small property houses between members of the same collective organization is generally considered to be effective, or the house is sold to people outside the township, but it has been approved by relevant organizations and departments.

Li Ning said that according to the above-mentioned legal provisions, it can be seen that China's laws clearly stipulate that rural houses, the so-called small property houses, can only be distributed to villagers in the village and are prohibited from being sold to urban residents, but they do not prohibit the circulation and sale of small property houses among members of the same collective organization. According to the principle of private law, the law can be done without prohibition, and our laws and regulations do not prohibit the sale of small property houses between the same collective members. Therefore, as long as the same collective member has the corresponding capacity for civil rights and capacity for civil conduct, when signing the contract for the sale of small property houses, the intention is true and does not violate the law or social public interests, and the contract for the sale of small property houses is generally considered valid.

Illegal purchase of homesteads to build houses cannot be turned positive.

However, most buyers who buy small property houses are faced with the situation that the purchase contract is illegal and the transaction is legally deemed invalid. There are two situations that are considered illegal: first, the collective buys and sells small property houses with members of other collective organizations, such as villagers in Ma Xiao Village of Taiyuan City buying houses on collective land in Wucheng Village; Secondly, there are small property houses bought and sold between members of collective organizations and urban residents, which is the most common situation in the market at present. It can be simply understood as "citizens" buying "peasant houses".

Rural homestead is the foundation of farmers, who only have the right to use the homestead, but have no ownership. In judicial practice, the people's court does not support the litigation request of urban residents to buy homesteads or houses in rural areas. Generally, the contract for the sale of private houses in rural areas will be deemed invalid.

Ping Cui, a lawyer of Shanghai Shangke Law Firm, believes that urban land belongs to the state, while rural and suburban land belongs to the collective, and all of them belong to the collective except those that are owned by the state according to the law, such as homestead, private plots and private hills. No organization or individual may occupy, trade or illegally transfer land in other forms. To put it more simply, farmers' houses shall not be sold to urban residents, nor shall urban residents be allowed to occupy farmers' collective land for building houses, and the relevant departments shall not issue land use certificates and real estate licenses for illegally built and purchased houses. In other words, rural homestead can only be allocated to villagers in the village, and urban residents are not allowed to buy homestead, farmers' houses or "small property houses" in rural areas.

However, there is one exception, that is, urban residents have obtained collective organization accounts after signing the contract for the sale of small property rights houses. With the approval of relevant departments, the contract for the sale of houses is generally considered valid.

Disputes can only be balanced as much as possible.

If you buy a small property right house and the sales contract is deemed invalid, what should both parties do?

The reporter consulted Article 58 of the Contract Law of People's Republic of China (PRC): After the contract is invalid or dissolved, the property obtained from the contract shall be returned; If it is impossible or unnecessary to return it, it shall be compensated at a discount. The party at fault shall compensate the other party for the losses suffered as a result. If both parties are at fault, they shall bear their respective responsibilities.

But in practice, the court will try its best to balance the interests of buyers and sellers.

Some lawyers believe that the seller bears the main responsibility and the buyer bears the secondary responsibility for the reasons why the contract is invalid; When dealing with the invalidity of the contract, we should comprehensively consider the interests of the seller due to land appreciation or demolition and compensation, as well as the losses caused by the difference between the present value of the house and the original purchase and sale price, balance the interests of the buyer and the seller, and avoid the imbalance of interests caused by the invalidity of the contract. The sales contract signed by urban residents and others on the small property houses built on rural collective land is invalid, and the losses caused thereby shall be shared by both parties according to the fault liability.

For the dispute cases caused by buying and selling small property houses developed on collectively owned land, according to the relevant basis, in addition to legally confirming that the sales contract of small property houses is invalid, the seller will also bear the responsibility of contracting fault to avoid the imbalance of interests of the parties.

In real life, there are more complicated situations. For example, after buying a small property right house, it will face the situation of municipal transformation and expropriation, and then there will be compensation disputes. In this case, when determining the compensation for the buyer's losses, the house replacement price and location compensation will be determined with reference to the evaluation results in the demolition procedure; If you don't enter the demolition procedure, there will be a professional appraisal method to determine the housing replacement and location compensation price, but this situation is very complicated, which is relatively unfavorable to the purchase of small-sized property buyers.