In the mainland, collective ownership of homesteads means that rural homesteads should be built fairly, and the "unfairness" in the actual use of homesteads has caused many practical problems, such as the increase in disputes over villagers' homesteads. Some people asked in the self-media what to do if the area of the house built according to the 1982 homestead certificate was less. At present, the "detailed rules" for handling homestead disputes are the Several Provisions on Determining Land Ownership and Use Rights (hereinafter referred to as the "Detailed Rules"), which came into force on May 1, 1995.
Today's Statement: Homestead Ownership
1. The meaning of collective ownership of homesteads
In the mainland, collective ownership of homestead land is provided for by law, for example, the second half of paragraph 2 of Article 10 of the Constitution stipulates that homestead land also belongs to collective ownership. Collective ownership also means that rural homestead construction should be fair. Before the implementation of the household contract responsibility system in rural areas, rural collective economic organizations discussed plans for the use of homestead land in light of the actual conditions of their villages. After the implementation of the responsibility system, the position of rural collective economic organizations has been weakened, and most of the homestead land is used on the basis of actual possession, such as building houses by households.
For example, Article 48 of the "Detailed Rules" stipulates that if the property rights of non-agricultural residents (including overseas Chinese) have not changed in their original homesteads in rural areas, the right to use their collective land for construction can be determined in accordance with the law. According to the foregoing provisions, when a rural dwelling is demolished, the homestead compensation shall be owned by the collective economic organization.
Collective ownership of homesteads also means that homesteads and non-agricultural construction land should be arranged separately or planned to ensure that homesteads are not reduced. Article 50 of the "Detailed Rules" stipulates that the right to use collective land for construction purposes other than non-agricultural construction land and homestead land other than the homestead land of rural professional households shall be determined separately. Due to the fact that many land administrative departments do not understand the above-mentioned "rules", many homesteads are registered as non-agricultural construction land.
2. The reasons for the "unfairness" of rural homestead construction
In rural areas, there is indeed an "unfairness" phenomenon in the construction of homestead houses, and the reason for this is that the unfair reality is mainly due to the misunderstanding of homesteads by relevant departments. Its contents mainly include: the handling of the value conflict between homestead land and self-reserved land, the attributes of homestead land and commercial housing construction land, and the resettlement of rural residential demolition.
In the village planning, many homesteads exist in the form of self-reserved land or self-cultivated mountains, among which the self-cultivated mountains are mainly mountainous areas or villages in hilly areas. The allocation of self-reserved land and self-reserved mountains is mainly due to historical reasons, among which the distribution mainly includes the following two stages:
The first stage is that in the era of planned economy, the production team was assigned to the villagers to develop agricultural and sideline industries to solve the problem of insufficient food rations for the villagers. In the second stage, after the implementation of the household contract responsibility system in rural areas, the production team will allocate unregistered agricultural land to the villagers for use.
The allocation of self-reserved land to rural households is based on the family size at that time, and when the rural household population increases or decreases, the self-reserved land is not adjusted. From the historical analysis of the formation of self-reserved land and self-cultivated mountains, the purpose of distribution is to supplement or increase the income of the villagers. After the reform and opening up, villagers can obtain income in a variety of ways, according to which, when there is a conflict between the value of homestead land and self-reserved land, the collective economic organization or administrative department should give priority to the villagers' right of residence.
After the implementation of the household contract responsibility system in rural areas, the status of rural collective economic organizations has been weakened, and most of the rural homestead arrangement plans have not been voted on by villagers' meetings, but are based on the actual occupation and use of self-reserved land and self-reserved land, which is the main reason for the "unfairness" of rural homestead construction. What needs to be noted here is that the attributes of homestead and commercial housing construction land are mixed, and the resettlement of rural residential demolition is an incentive to affect the construction of rural homesteads, so I will not repeat them here.
The reason why it is "unfair" to build houses on rural homesteads
3. The provisions of the "Detailed Rules" on the best settlement of homestead disputes
At present, the mainland's regulations on the allocation and determination of homestead land, as well as the division and transfer of households, are very scattered. Many local policies have deviated from the specific content of the "Detailed Rules" and made provisions. Accordingly, if the administrative and judicial practice resolves homestead disputes in accordance with local policies, the results are not "optimal", and the provisions of the "Detailed Rules" on the best settlement of homestead disputes are as follows:
Article 45 of the "Detailed Rules" stipulates that before the promulgation of the Regulations on the Administration of Land for Housing in Villages and Towns by the State Council in February 1982, the homestead land occupied by rural residents for housing construction exceeds the area prescribed by the local government, and if it has not been demolished, rebuilt or renovated after the implementation of the Regulations on the Administration of Land for Housing in Villages and Towns, the right to use land for collective land construction may be temporarily determined according to the existing actual use area. Accordingly, in the case of demolition, reconstruction, or renovation of rural dwellings, the area of the homestead shall be determined in accordance with the provisions of Article 62, Paragraph 1 of the Land Management Law, but "renovation" does not include repairs.
Article 47 of the "Detailed Rules" stipulates that if a rural resident who meets the local government's regulations on building houses by household but has not yet divided his household, and his existing homestead land does not exceed the standard of the total area of land used for building houses by household, the right to use land for collective land construction may be determined according to the area of the existing homestead land. Accordingly, in the above-mentioned circumstances, the villagers who have not been divided into households also enjoy corresponding benefits when they are demolished, and the insufficient part can be supplemented when the households are divided.
The first sentence of Article 49 of the "Detailed Rules" stipulates that if the total area of the homestead land acquired by the transfer or purchase of a house exceeds the standard prescribed by the local government, and it is allowed to continue to use it after being disposed of in accordance with the relevant regulations, the right to use the land for collective land construction may be temporarily determined. Accordingly, the circumstances shall not exceed the standards set by the local government. The second sentence stipulates that the right to use the homestead land for collective land construction can be determined by inheriting the homestead acquired by the house, and accordingly, the inheritance of the homestead land use right is different from other methods.
The first sentence of Article 52 of the "Detailed Rules" stipulates that the land use right is uncertain if the homestead land is vacant or the house collapses or is demolished and has not been restored for more than two years. Accordingly, villagers who have settled in the city need to repair their rural houses in a timely manner to prevent them from collapsing. The second sentence stipulates that if the right of use has been determined, the collective shall report to the people's government at the county level for approval, cancel its land registration, and the land shall be recovered by the collective. Accordingly, if the new rural population meets the conditions for household separation, they may apply for the aforesaid land to be used as homestead land in accordance with the law.
The provisions of the "By-Laws" for the best settlement of homestead disputes
As far as the question of "what to do if the area of the house built according to the 1982 homestead certificate is reduced", the solution is as follows: First, whether the area registered on the homestead certificate in 1982 exceeds the standard stipulated by the province, autonomous region and municipality directly under the Central Government, and if so, it has been exceeded, and the existing area is applied for building a house from the perspective of the best solution. Second, from the source analysis of homestead acquisition, the relevant rights can be exercised by inheriting the homestead, and the homestead can be obtained by other means to apply for building a house with the actual area.