Whether unlicensed housing is equal to illegal construction is a concern of many friends, especially farmers, due to various reasons such as historical legacy problems or difficulties in obtaining permits, it may lead to its own legal house becoming an unlicensed house. At the same time, under the influence of this policy of expropriation, demolition and demolition of illegal buildings, unlicensed houses have become the focus of compulsory demolition, so how to determine whether unlicensed houses are illegal buildings and whether they can be compensated after forced demolition has become the focus of everyone's attention. Shi Xining, the chief lawyer of Beijing Jingkang Law Firm, would like to talk to you about whether the unlicensed house is illegally built and whether compensation can be obtained after the forced demolition.
Lawyer's interpretation
With the steady progress of urban construction and rural transformation, expropriation, demolition and compulsory demolition of illegal buildings have become the focus of today's transformation, in such a situation, there will be governments at all levels or other law enforcement departments to use unlicensed houses as an excuse or means to achieve expropriation, demolition and compulsory demolition of illegal buildings, but whether unlicensed houses are equivalent to illegal construction and compulsory demolition after being demolished can claim compensation from the administrative organs that have made compulsory demolition administrative acts is the most concerned issue. We analyze the following points and several points:
1. What is an illegal building?
Illegal construction refers to buildings and structures that are constructed without the approval of the competent department of planning and land, without obtaining a planning permit for a construction project or a planning permit for a temporary construction project, in violation of the provisions of laws and administrative regulations. The concept of illegal construction is an important criterion for us to determine whether a house is an illegal building, and the following situations are often identified as illegal buildings in practice:
1. Failure to obtain a construction project planning permit or failure to construct in accordance with the approved content despite obtaining a construction project planning permit;
2. Self-built houses built before approval;
3. Buildings and structures newly built, renovated or expanded on rural collective land without approval, and no legal land use rights have been obtained;
4. Buildings built on the basis of existing houses without authorization;
5. Buildings that are newly built, expanded, or reconstructed to obtain improper benefits after the scope of expropriation is determined.
Second, the current situation of unlicensed housing
In practice, it is a common trick of the demolition party to identify unlicensed houses as illegal buildings, and the forced demolition of illegal buildings reduces the compensation for demolition on the one hand, and compresses the time cost on the other hand, and seriously damages the interests of the demolished people. Unlicensed is not a violation and should be analyzed on a case-by-case basis. Even if the house is an illegal building, reasonable compensation should be given in accordance with the "principle of proportionality" in the administrative law, that is, the principle of "proportionality of the penalty in the Administrative Punishment Law". As for how to compensate, a compensation plan for the expropriation of unlicensed houses can be comprehensively formulated by considering factors such as the time of construction, the legislative status at that time, and whether there was inaction on the part of the law enforcement agencies at that time.
As long as the construction of residential houses by rural residents is reviewed by the township government and approved by the county-level government, even if there is no homestead certificate or building certificate, it cannot be recognized as an illegal building. Even if an unlicensed house is identified as an illegal building, compensation is required, and no compensation will be given for the illegal part of the building that is determined to be an illegal building after investigation by the relevant departments. For the lawful part, an equivalent compensation should be given. We still have the right to seek compensation for the land and building materials that should have belonged to us.
3. Compensation for the forced demolition of unlicensed houses
Unlicensed houses are always regarded as non-compensated houses in compulsory demolition, expropriation and demolition, but not all unlicensed houses cannot be compensated in the above situations. First of all, because the rural houses or urban agricultural houses are too loose in the initial management, the management of property rights is not in place, and at the same time, there are many people who want to apply for real estate certificates have nowhere to do, so there are a large number of unlicensed houses, but these unlicensed houses are not equal to illegal buildings, as long as the houses are built in accordance with the law, even if there is no property right certificate, after the house demolition or compulsory demolition, it can also get full compensation. Secondly, there are many houses that are very old and belong to the historical legacy, and in the last century there were few procedures to build a house, and if it is required by the current law, it can indeed be classified as an illegal building, but the law does not apply retroactively, so it is necessary to determine whether it is legal or illegal according to the time when the house was built and the time when the current law was published.
To sum up, an unlicensed house cannot be completely equated with an illegal building, and it is necessary to jointly confirm whether an unlicensed house is an illegal building according to the reasons that cause the house to become an unlicensed house and other legal provisions, and whether it can be compensated is not a simple thing to determine, and it also needs to be confirmed in a variety of ways.
Director Shi reminded
Demolition and relocation is a long-term struggle that requires comprehensive professional knowledge, control of the overall situation, and rational application of the law. Even a lawyer with many years of litigation experience is constantly learning and updating, so that he can calmly analyze and make correct judgments in a case. And for non-law-abiding people, this is a huge subject that cannot be achieved by just a short period of time. Therefore, when encountering any demolition problems, you may wish to ask a lawyer and carry out professional rights protection under the guidance of a lawyer.