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Article 362 of the Civil Code of the People's Republic of China (hereinafter referred to as the "Civil Code") stipulates that "the owner of the right to use the homestead land shall have the right to occupy and use the collectively owned land in accordance with the law, and shall have the right to use the land to build residential buildings and ancillary facilities in accordance with the law." "The right to use homestead land is a kind of usufructuary right, and its system originates from the mainland's policy of dualizing the distinction between "urban population" and "rural population", and the core is to safeguard the collective ownership of rural land and protect the basic residential rights of rural villagers. Based on the subject specificity of the homestead use right under the current regulations (in principle, it is limited to rural residents), it seems that there is not much controversy about whether urban residents can obtain the homestead use right, but in practice, with the development of urbanization in China, a large number of young rural people have migrated to urban areas, and the question of whether urban residents with household registration can obtain the right to use homestead land has attracted more and more attention.
1. Basic Provisions
1. "Civil Code"
Article 363 stipulates that "the acquisition, exercise and transfer of the right to use homestead land shall be governed by the law on land management and relevant state regulations." ”
2. Land Management Law of the People's Republic of China (hereinafter referred to as the "Land Management Law")
Paragraph 2 of Article 9 stipulates that "land in rural areas and suburban areas shall be owned by peasant collectives, except as provided by law, shall be owned by peasant collectives; ”
Article 10 stipulates that "State-owned land and land owned by peasant collectives may be designated for use by units or individuals in accordance with the law." Units and individuals using land have the obligation to protect, manage, and rationally use land. ”
Article 62 stipulates that "a rural villager household may only own one homestead land, and the area of the homestead shall not exceed the standard set by the province, autonomous region or municipality directly under the Central Government." ......”
3. Decision of the State Council on Deepening Reform and Strict Land Management (Guo Fa [2004] No. 28, hereinafter referred to as "Circular No. 28")
Subparagraph (x) provides that "...... Reform and improve the homestead approval system, strengthen the management of rural homesteads, and prohibit urban residents from purchasing homesteads in rural areas. ......”
4. Notice of the Office of the Central Rural Work Leading Group and the Ministry of Agriculture and Rural Affairs on Further Strengthening the Management of Rural Homesteads (Zhong Nongfa [2019] No. 11, hereinafter referred to as "Document No. 11")
Article 3 stipulates that "homestead land is the land used by rural villagers for collective construction of houses and their ancillary facilities, including land for housing, ancillary houses and courtyards. Rural villagers can only own one homestead per household, and the area must not exceed the standards set by the province, autonomous region, or municipality directly under the Central Government. ......”
Article 6 provides that "...... Homesteads are the basic housing guarantee for rural villagers, and it is strictly forbidden for urban residents to purchase homesteads in rural areas, and it is strictly forbidden to use rural homesteads to build villa compounds and private clubs in rural areas. It is strictly forbidden to occupy or buy or sell homestead land in violation of laws and regulations in the name of circulation. ”
According to the foregoing provisions, the right to use homestead land is not owned by the state, but belongs to the farmer collective, and may be determined to be used by the corresponding entity in accordance with the law.
Second, the basic principles of the homestead management system
According to the above provisions, the management system of homestead mainly includes the following four basic principles:
1. Owner specific: farmer collective
According to the principle established in the Civil Code that "the acquisition, exercise and transfer of the right to use homestead land shall be governed by the law on land management and relevant provisions of the state", the corresponding content of the right to use homestead land shall be determined in accordance with the law on land management and relevant provisions of the state. According to the relevant provisions of the above-mentioned Land Management Law, homestead land belongs to the collective ownership of farmers.
2. Specificity of the user right holder: In principle, it is limited to rural residents
According to the foregoing provisions, homestead land is the basic housing guarantee for rural villagers, and cannot be used or disguised for urban residents. That is, based on the current rules, the homestead user is a rural villager (a member of a rural collective economic organization) who meets the conditions for applying for the use of the homestead.
Articles 2 and 3 of Article 18 of the Regulations on the Administration of Planning and Construction of Villages and Market Towns (promulgated by Order No. 116 of the State Council of the People's Republic of China on June 29, 1993, currently in force) stipulate that "urban residents with non-agricultural household registration who need to use collectively owned land to build houses in the planning areas of villages and market towns shall, with the consent of their units or residents' committees, handle them in accordance with the examination and approval procedures specified in item (1) of the preceding paragraph." Workers, veterans, retired and retired cadres who have returned to their villages or market towns to settle down, as well as overseas Chinese, Hong Kong, Macao and Taiwan compatriots who have returned to their hometowns to settle down, and need to use collectively owned land to build houses in the planning areas of villages and market towns, shall handle the procedures for examination and approval in accordance with the examination and approval procedures provided for in item (1) of the first paragraph of this Article. According to the provisions, urban non-agricultural residents and workers who have returned to their villages and market towns to settle down, veterans and retired and retired cadres, as well as overseas Chinese, Hong Kong, Macao and Taiwan compatriots who have returned to their hometowns to settle down can also become the subject of the right to use homestead land. However, there are no such provisions in the Land Administration Law. In other words, according to the current laws and regulations, the homestead use right holder is specific and cannot be extended to other entities other than rural residents.
3. Object specificity: limited to land owned by peasant collectives
According to Article 362 of the Civil Code, the object of the homestead use right is "collectively owned land", that is, the homestead use right cannot be established on state-owned land. At the same time, according to the third paragraph of Article 62 of the Land Management Law, "rural villagers shall build houses in accordance with the overall land use plan of the township (town) and the village plan, shall not occupy permanent basic farmland, and shall use the original homestead land and vacant land in the village as much as possible." The preparation of overall township (town) land use plans and village plans shall make overall plans and reasonable arrangements for homestead land to improve the living environment and conditions of rural villagers. ”
4. Circulation rules: limited internal
Paragraph 6 of Article 62 of the Land Administration Law stipulates that "the State shall allow rural villagers who have settled in urban areas to voluntarily withdraw from their homesteads with compensation in accordance with the law, and encourage rural collective economic organizations and their members to revitalize and utilize idle homesteads and houses." ”
Article 35 of the Regulations for the Implementation of the Land Management Law of the People's Republic of China stipulates that "the State allows rural villagers who have settled in urban areas to voluntarily withdraw from their homesteads with compensation in accordance with the law. Township (town) people's governments, rural collective economic organizations, villagers' committees, etc., shall give priority to the homestead land withdrawn to ensure the homestead needs of the members of the rural collective economic organization. Article 36 stipulates that "the homestead land acquired in accordance with the law and the rural villagers' dwellings on the homestead land and their ancillary facilities shall be protected by law." It is forbidden to forcibly transfer homestead land against the will of rural villagers, to illegally repossess homestead land lawfully acquired by rural villagers, to make withdrawal of homestead land a condition for rural villagers to settle in cities, and to force rural villagers to relocate and withdraw from homestead land. For example, the Administrative Measures for the Circulation of Rural Homestead Use Rights in Zhongwei City (for Trial Implementation) stipulate that "the transfer of homestead use rights between villagers in the village" and "the transfer of homestead use rights by villagers to land users outside the village" shall be carried out in accordance with local regulations.
3. Whether urban residents with household registration can obtain the right to use homestead land
1. Urban residents with household registration cannot obtain the right to use homestead land through purchase
Circular No. 28 and Circular No. 11 both stipulate that "urban residents are prohibited from purchasing homestead land in rural areas", making it impossible for urban residents to acquire homestead land through purchase, which is also in line with the basic principle of the current laws and regulations on the protection of the right to use homestead land for "rural villagers". However, the current laws and regulations provide for exceptions to the acquisition of homestead use rights by inheritance.
2. Urban residents with household registration can inherit the ownership of houses attached to homesteads
According to Article 124 of the Civil Code, "the lawful private property of a natural person may be inherited in accordance with law." According to Article 1122 of the Civil Code, "An estate is the legal property of a natural person left behind at the time of his death. An inheritance that is not allowed to be inherited in accordance with the law or by its nature shall not be inherited. "A house built on a homestead is the property legally owned by an individual villager and should be acquired by the heirs of the villager through inheritance, even if such heirs are non-rural villagers.
3. Urban residents with household registration can obtain the right to use homestead land by inheriting the ownership of the house
Based on the legal inheritability of house ownership and the property right rule of "integration of real estate and land", the legal occupation and use of homestead land based on inheritance of house ownership is legally recognized.
(1) According to Article 49 of the Several Provisions on Determining Land Ownership and Use Rights ([1995] Guo Tu [Ji] Zi No. 26, currently in force), "the homestead land obtained by inheriting the house may determine the right to use the land for collective land construction. ”
(2) According to Article 6 of the Several Opinions of the Ministry of Land and Resources, the Office of the Central Rural Work Leading Group, the Ministry of Finance and the Ministry of Agriculture on the Registration and Issuance of Rural Collective Land Ownership Confirmation (Guo Lu Zi Fa [2011] No. 178), "...... If a member of the farmer's collective or a rural or urban resident who is not a member of the farmer's collective already owns a homestead land and occupies the rural homestead due to the inheritance of the house, he or she may register and issue a certificate in accordance with the regulations, and the ...... shall be noted in the memo column of the "Collective Land Use Certificate" that 'the right holder is the legal heir of the residence of the original member of the farmer's collective'
(3) According to Article 36 of the Letter of the General Office of the Ministry of Natural Resources on Printing <宅基地和集体建设用地使用权确权登记工作问答>and Distributing (Natural Resources Office Letter [2020] No. 1344), "...... (2) If a person who is not a member of the farmer's collective economic organization (including urban residents) occupies the homestead land due to the inheritance of the house, he or she may confirm the registration of the right in accordance with the regulations, and note in the immovable property register and the attached column of the certificate that 'the right holder is the legal heir of the residence of the original member of the farmer's collective economic organization'. ......”
(4) According to the relevant provisions of Article 6 of the Reply of the Ministry of Natural Resources to Recommendation No. 3226 of the Third Session of the 13th National People's Congress (Natural Resources [2020] No. 089), "the right to use the homestead of farmers may be inherited by the children of urban household registration and the registration of immovable property shall be carried out in accordance with the law. According to the Inheritance Law (repealed after the implementation of the Civil Code), the decedent's house is inherited by the heir as his inheritance, and in accordance with the principle of the integration of real estate and land, the heir inherits the ownership of the house and the right to use the homestead, and the rural homestead cannot be inherited separately. The Operational Specifications for Real Estate Registration (for Trial Implementation) clearly stipulate that if a person who is not a member of the rural collective economic organization (including urban residents) occupies a homestead due to the inheritance of a house, he or she may go through the registration of ownership in accordance with the relevant regulations, and note in the real estate registration book and the attached column of the certificate that 'the right holder is the legal heir of the residence of the original member of the farmer collective economic organization'. ”
(5) According to Article 10.3.1 of the Operational Specifications for Real Estate Registration (Trial) (Revised in 2021), "if the registered homestead use right and house ownership have any of the following circumstances, the party concerned may apply for transfer registration: 1. inheritance in accordance with law......;
To sum up, urban residents can only obtain the right to use the homestead based on the ownership of the house built on the homestead by the villagers, but if there is no house built on the homestead, they cannot independently inherit the right to use the homestead.
About the author
 | Wei Xie is a partner of the firm Mr. Xie has extensive experience in corporate listing and financing, cross-border mergers and acquisitions, banking and cross-border notarization. |
| | Junna Li is a lawyer at the firm Mr. Li's main areas of legal services are corporate listing and financing, cross-border mergers and acquisitions, and cross-border banking business. |
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