In the real estate market, intermediaries such as self-media began to speculate on idle rural houses and sell them to urban people. Many transferees are not at ease and ask: Is there a risk here? Some people have asked: Will the rural homestead policy be relaxed? The sale and purchase of homesteads is legal, but the demolition and relocation policy needs to make up for the loopholes in the "revitalization."
Today's statement: the meaning of revitalizing the homestead
1. Overview of "Vulnerabilities in 'Revitalization'".
The so-called "loopholes in 'revitalization'" refers to a case before 2019 by a district court in Nanjing. Before 2019, urban resident A purchased the house of villager B, and soon after, the village where villager B lived was included in the economic development zone. At the time of demolition and resettlement, villager B had no house to relocate, so B filed a lawsuit for confirmation of the invalidity of the residential sales contract.
After a district court's trial and judgment, the sales contract of A and B was invalid, but the ruling did not support mutual return. The demolition and relocation department of an economic development zone signed a demolition and resettlement agreement with A in accordance with the court's judgment, and A privately paid 50,000 yuan for B's lawyer's agency fee and then enjoyed the demolition benefits of the purchased rural residence.
From a legal point of view, the basis for the invalidity of the sales contract of a certain district court is the rural homestead policy, and there is a legal basis for not supporting the return. The reason for the loss of villager B's interests is that the demolition policy of a certain district has not closed the relevant legal loopholes. Some people may ask, what exactly does the Land Management Law stipulate on the sale and purchase of homesteads?
An overview of "Vulnerabilities in 'Revitalization'".
Second, the meaning of revitalizing the homestead
Paragraph 4 of Article 62 of the Land Management Law before the amendment stipulated that if a rural villager sells or rents his house and then applies for a homestead land, it will not be approved. Accordingly, it is lawful for rural villagers to sell their rural dwellings. The reason why this Law no longer approves the application of villagers for homestead land is that the first paragraph of this article stipulates that a rural villager household can only own one homestead land.
In judicial practice, there are a large number of judicial rulings that "revitalize the loopholes in the 'revitalization'". In 2019, the state amended the Land Administration Law, in which a sixth paragraph was added to Article 62 and placed after the fourth paragraph above, one of the purposes of the order is to prompt the formulation of local policies, or to exclude homestead compensation from housing sales contracts when revitalizing residential land.
Article 62, paragraph 6, provides that the State shall ...... Rural collective economic organizations and their members are encouraged to revitalize and utilize idle homesteads and idle residences. Accordingly, idle houses in rural areas can be revitalized, and idle homesteads can also be revitalized. Villagers can be revitalized, and village collective economic organizations can also be revitalized.
There is no time limit for rural villagers to use homesteads, and the state allows or encourages revitalization, which means that homestead ownership can be bought and sold. According to this, after the urban real estate market has no room for speculation due to the price reaching the limit, many intermediaries such as self-media have begun to speculate on idle houses in rural areas according to the regulations on revitalization.
In this case, A was able to obtain a demolition and resettlement house as a villager because A was entitled to homestead compensation. The reason why A enjoys land compensation is that there is a rule of "land goes with the house" for construction land. Accordingly, the meaning of revitalization should be to restrict the land with the house under specific circumstances, for example, the house that can be purchased by members outside the collective economic organization can be lived in normally, and the place will not go with the house when it is demolished.
3. The scope of application of "land goes with the house".
The Civil Code stipulates the rule of "land goes with the house" in the chapter on "the right to use construction land". Article 357 stipulates that where a building, structure and its ancillary facilities are transferred, exchanged, contributed capital or donated, the right to use the construction land within the scope occupied by the building, structure and its ancillary facilities shall be disposed of together. Theoretically, the content of this article is summarized as the rule of "the house goes with the place" and "the land goes with the house".
For example, the first sentence of the fourth paragraph of Article 63 of the Land Management Law stipulates that capital contribution, donation, mortgage, etc., shall be implemented with reference to state-owned construction land for the same purpose. The consequence of the expiration of the time limit is that the rule of "land goes with the house" is extinguished, the right to use the land is in a state of completion, and the rural collective economy can demand that the owner restore the original state of the "house" without compensation.
The rule of "land follows the house" cannot be applied by analogy to the right to use the homestead. The Civil Code does not stipulate the term of the homestead use right in the chapter "Homestead Use Rights", and if the homestead use rights are subject to the "land goes with the house" rule, the purchase and sale of rural houses is equivalent to a transaction of collective land ownership. Accordingly, the application of "land with the house" is limited to construction land.
The scope of application of "land goes with the house".
In mainland China, rural collective economic organizations and their members are a "disadvantaged" group in social life, for example, most of the targets of labor dispatch are villagers, but the Labor Contract Law sets up an administrative license for labor dispatch, and the village collective economy cannot send farmers to work. If the state and society cannot correctly define the meaning of revitalizing homesteads, most people can predict that the rural homestead market will be controlled by social capital. Accordingly, the sale and purchase of homestead land is legal, but the demolition policy needs to make up for the loopholes in the "revitalization".