Ask for help, how to transfer small property rights (small property rights that cannot be mortgaged)?

Legal status of small property right houses

With its low price, "small property right house" has spread rapidly in major cities all over the country, occupying a large share in the housing market, and its legitimacy and a series of problems caused by it have also followed. Not long ago, the Beijing Municipal Construction Committee issued the "Risk Tips on Issues Related to House Purchase" to remind buyers not to buy houses with no property rights or disputed property rights, and said that "in view of the problems that affect the transaction safety and damage the legitimate rights and interests of the parties to the transaction in the current real estate transaction market, the Municipal Construction Committee solemnly reminds consumers not to buy houses with no property rights or disputed property rights. Don't buy houses advertised as' right to use',' rural property rights' and' small property rights'. This kind of house has no property right protection, ownership, transfer right, disposal right, income right and so on. And you can't handle the transfer of property rights of the house. " . This has once again aroused everyone's concern about the "small property right house" and the debate on its legal status.

Whether the small property right house is legal or not, whether it can be purchased or transferred, we must first make clear what is "small property right"? In fact, "small property rights" is not a legal concept, but a conventional title formed by people in social practice. So there is no normative explanation for the meaning of "small property rights". At present, there are three main explanations for "small property rights".

The first explanation is that the property right of developers is called "big property right" and the property right of buyers is called "small property right". The name is because the property right of the buyer was divided by a property right of the developer. Relatively speaking, developers are big and buyers are small.

The second explanation is based on whether it is necessary to pay the land transfer fee when the house is re-transferred. Those who don't need to pay the land transfer fee are called "big property rights" and those who want to pay the land transfer fee are called "small property rights". According to this explanation, ordinary commercial housing is a "big property" house, and affordable housing is a "small property" house.

The third explanation is distinguished by the issuing authority of property right certificate. If the state issues a property right certificate, it is called "big property right". If the state does not issue property right certificates, it is called "small property right", also called "rural property right". What buyers need to pay attention to is that "rural property rights" do not constitute real estate rights in the legal sense.

The first and second interpretations of "small property rights" are legal. As long as the purchase price is paid, or the land transfer fee is paid at the time of transfer, you can buy and sell freely, and its legal provisions are clear. However, the third explanation of the legal nature of "small property rights" is controversial, and there is no real legal property right certificate. This is the main topic we are going to discuss today.

What is the legal nature of rural property houses? Is it legal and can it be purchased or transferred?

First of all, it must be clear that rural property houses are legal buildings as long as they have gone through the relevant examination and approval procedures according to law, and the law allows rural collectives to build houses on collective land. Therefore, it is not only rural property houses that are illegal buildings. It's just that some problems in the sales link conflict with the current laws and regulations, which makes people mistakenly think that it is illegal construction. Since it is legal, can rural property houses be purchased and transferred? According to the Land Management Law of the People's Republic of China, the land use right collectively owned by farmers shall not be sold, transferred or leased for non-agricultural construction. Rural homestead is collectively owned, and villagers only have the right to use homestead. Farmers can't get legal recognition and protection when they sell their houses to urban residents, and they can't go through legal procedures such as land use certificate, real estate license and deed tax certificate. Moreover, according to relevant laws and regulations, it is strictly forbidden for urban residents to buy homesteads in rural areas, and it is strictly forbidden to issue land use certificates for houses purchased and illegally built by urban residents in rural areas. Rural villagers who apply for homestead after selling or renting their original houses shall not be approved. Therefore, rural property houses cannot be transferred or sold to a third party who is not a collective member. Therefore, the purchase of rural property houses by citizens other than rural collectives is not legally recognized and its behavior is invalid. On the one hand, the right to use rural homestead is only the collective land use right enjoyed by villagers, and the land ownership still belongs to the village collective. Therefore, as far as the villagers are concerned, they cannot dispose of the land. On the other hand, the right to use rural homestead is a kind of membership right enjoyed by collective members and cannot be transferred to others as members. As a kind of membership right, it cannot be enjoyed by a third person other than a collective member. The property right certificate issued by the township government is invalid and cannot prove the property right of the house. Because the township government is not the issuing authority of housing property rights stipulated by Chinese law and is not qualified to issue certificates, its behavior is invalid. At the same time, Chinese law stipulates that the real right of real estate is based on registration, and its unregistered real right cannot be recognized by law. However, the transfer procedures handled by the township (town) government or villagers' committee are not recognized by law. However, this does not mean that rural property houses cannot be transferred, but the objects of their transfer or sale are limited and can only be transferred and replaced within the collective members.

What are the risks that urban residents have bought or are ready to buy rural property houses?

First, the legal risks, which have been discussed in detail, make the circulation and transfer of rural property houses have many restrictions, because rural property houses are not commercial houses because they only have the use nature of ordinary commercial houses, but not the legal nature of ordinary commercial houses. Therefore, the relevant provisions and systems of laws and regulations on commercial housing are invalid for rural property houses, and the people's courts cannot apply the legal provisions and judicial interpretations on the sale of commercial housing to handle cases involving rural property houses, making it difficult to safeguard the rights and interests of buyers. At the same time, because the contract for purchasing rural property houses is invalid, according to the law, buyers can only ask developers to refund the purchase price and pay interest according to the bank loan interest rate for the same period. However, according to the existing cases, the people's court may not support the buyer who knows that the purchased house is still purchased by the township property right house and requests compensation for losses due to his own fault. And even if the developer breaches the contract, the buyer's rights will not be guaranteed because the contract is invalid. Because rural property houses are not recognized by law, not filed in the housing management department and not supervised by government agencies, if they encounter some housing quality problems and public facilities maintenance problems during the use of houses, their relief channels are very limited.

The second is policy risk. After purchasing the rural property right houses under construction, the buyers sign contracts with the developers and pay the house price. If the relevant departments rectify the rural property right houses construction projects, some projects may be stopped or even forcibly removed. Then the result can only be that the purchaser asks the developer for the purchase price, and the purchaser may face the embarrassing situation that he can neither obtain the house nor claim the house price in time. In addition, if there is land acquisition and demolition after buying a house, because the rural property right house has no legal property right recognized by the state, the purchaser is not the legal property right owner, and it is very likely that he will not get the compensation for property right demolition. As the actual user, the compensation for demolition is very small compared with the compensation for property right.

Third, at present, there is no clear norm for the development and construction of rural property houses, and the supervision of development and construction is also absent. However, the development of rural property houses is not supported by bank loans. In the process of development, a large number of development funds are not regulated by the government and banks, but mainly rely on the self-discipline of developers. Once there is a problem with the funds or other links of the development unit, it is very likely to become an unfinished project. If the purchase price is paid to the developer in advance without any qualification and supervision, there are great risks for the buyers, such as the safety of funds, whether the developer's funds are in place on time, and whether the house can be delivered on time according to quality. At the same time, without the qualification of developers, it is difficult to guarantee the quality of houses and the after-sales warranty of houses. And the property management after occupancy is also prone to problems.

Fourth, because the purchased rural property houses have not been recognized and legally protected by the national real estate authorities, they cannot go through legal property rights procedures and cannot be legally transferred after purchase. At the same time, it also has a great impact on the preservation and appreciation of houses.

Is it possible for rural small property houses to become large property houses?

Many people believe that with the introduction of the property law, citizens' property rights will be fully affirmed, and rural property houses will also be recognized by law, which can eventually be transformed into legal property houses. Can township property houses be transformed into real property houses? Judging from the current relevant laws and regulations in China, there is still a lack of legal basis for the transformation of rural property houses into property houses. Judging from the concept and value orientation of land management in China, China will not let go of the circulation of collective land in the short term. Therefore, it will take a long time for rural property rights housing reform to cause property rights housing. At the same time, even if rural property houses can be transformed into property houses in the future, from the perspective of the existing land system, buyers still need to pay land transfer fees. As a result, the cost of purchasing rural property houses by property buyers is almost the same as that of purchasing commercial houses.

Therefore, we suggest that it is best not to buy rural property houses, and you should check out as soon as possible if you have already bought them. If you think you can bear the risks mentioned in this article, or you really need to buy a rural property house, we suggest you buy an existing house, and pay attention to check whether the project has gone through the corresponding examination and approval procedures, as well as the qualifications and credibility of the developer, so as to minimize the risk of buying a house. If you are unable or unwilling to take the above risks and want to buy rural property houses, at present, you have to transfer your household registration to the village collective where the rural property houses are located.

The above contents are all lawyers' personal opinions and are for reference only!

Gao Heng