Edit | July
Author | Huaicheng lawyer Yan Shipeng
In the process of housing expropriation and compensation, the government or the expropriation department often encounters nail households that do not cooperate with the expropriation.
Some expropriation departments will resort to a trick - to determine that the expropriated person's house is a dangerous house, so as to force the demolition.
1
Residents do not cooperate with expropriation
The district government forcibly demolished dangerous houses
Song mou is a resident of Lanzhou City, with a house of 1006 square meters.
In 2017, the Chengguan District Government, where Song was located, issued an announcement on land expropriation.
On August 31, the street office posted the "Notice of Emergency Avoidance", informing Song that the house where Song lived had serious safety hazards and requested to cooperate with the emergency avoidance work to evacuate the dangerous house.
Upon the application of the neighborhood committee of Song's community, the local architectural design institute issued a "Housing Hazard Appraisal Report", which determined that Song's house hazard was comprehensively assessed as Dsu level, and recommended immediate demolition.
On December 1, the district government organized relevant units to forcibly demolish Song's house.
Song filed a lawsuit with the court, requesting confirmation that the administrative act of forcibly demolishing the house was illegal.
2
Sanjo reason
The court found the demolition illegal
After trial by the Lanzhou Intermediate People's Court and the Gansu Provincial High People's Court, the two levels of courts finally found that the administrative act of the district government in demolishing Song's house was illegal.
There are three reasons for this:
First, according to the first paragraph of article 7 of the Provisions on the Administration of Dangerous Houses in Cities, the subject applying for the appraisal of dangerous houses should be the owner of the house or the owner of the right to use, but the subject of the application for the appraisal of the dangerous house in this case is the community neighborhood committee, which is neither the owner of the house involved in the case nor the owner of the right to use, and the subject of the application for the appraisal of the dangerous house is not qualified;
Second, the appraisal report of the dangerous house was not delivered to Song, who was not aware of the fact that the house he lived in was identified as a dangerous house. The "Housing Hazard Appraisal Report" cannot be used as evidence to determine the legality of the government's demolition of Song's house;
Finally, according to the relevant provisions of the Emergency Response Law, the Regulations on the Prevention and Control of Geological Disasters, and the Administrative Compulsory Law, the compulsory demolition acts carried out by the district government did not meet the conditions for emergency risk avoidance, and the procedures were illegal and the application of the law was wrong.
3
Lawyer Huaicheng suggested
According to the Regulations on the Expropriation and Compensation of Houses on State-Owned Land, housing expropriation shall follow the principle of "compensation first, then demolition".
Even if it is not possible to reach a housing expropriation compensation agreement with the expropriated person, the housing expropriation department shall make a decision on expropriation compensation in accordance with the provisions of the Regulations on housing expropriation and compensation on state-owned land.
If the expropriated person neither applies for reconsideration nor initiates an administrative lawsuit, the housing expropriation department has the right to apply to the court for compulsory enforcement. This is the "secret trick" when the housing expropriation encounters difficulties.
On the grounds that the expropriated house is a dangerous house, in the name of emergency risk avoidance, to circumvent the expropriation procedure and carry out compulsory demolition, this is not in line with the principle of administration according to law, nor is it in line with the concept of protecting the legitimate rights and interests of the expropriated person.
Of course, if you want to make a decision on expropriation compensation that can be accepted by the court and rule that it is approved for compulsory enforcement, it is necessary to perform the statutory procedures for housing expropriation compensation in accordance with the law in the early stage, retain the valid materials for the performance of the procedures, and submit them to the court as evidence.
Mr. Huaicheng has nearly 20 years of rich practical experience in the fields of housing demolition, expropriation compensation, land collection and storage, and recovery of sea area use rights.
Huaicheng lawyers use their core product, the whole process of legal risk prevention and control services, to provide non-litigation legal services in the field of expropriation and demolition for governments at all levels. Through the "butler-style" full-process custody service in the process of legal services, customers can truly achieve peace of mind, peace of mind and peace of mind.
Related Cases:
Song Minggui v. Lanzhou Chengguan District People's Government Demolition administrative compulsory case (2018) Gan 71 Xingchu No. 53
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