Can urban residents obtain a collective land use certificate when building a house in rural areas?

According to the Land Administration Law of the People's Republic of China and the Notice on Strengthening the Management of Land Transfer and Strictly Prohibiting Land Speculation and Sale, and other documents issued by the State Council, urban hukou are not allowed to have the right to use residential land by building houses in rural areas. If urban residents obtain a collective land use certificate by applying for housing construction, will it be revoked? Let's explore learning through a case study:

Basic facts of the case

Ji A was originally a villager in a certain village, and his hukou was later converted to a non-agricultural hukou. After retiring in 1988, he moved his hukou back to Village B and lived in his ancestral house in the village. Due to the disrepair of the ancestral house, in 2009 Ji A submitted an application to build a house, and the village committee and the town government agreed to occupy part of the contracted land in the village to build a house. In November 2010, Ji A submitted to the former Land and Resources Bureau of the county where he was located an application for homestead registration, an identity card, and a land ownership certificate (indicated in the remarks column: This form is only for farmers who cannot provide land ownership certification materials for rural private housing construction before December 31, 1986) and other materials to apply for land registration. After accepting the application, the Land Bureau reported to the county government for registration and registration after the cadastral survey, parcel map mapping, announcement, registration and approval procedures, and in December 2011, the Collective Land Use Certificate was issued to Ji A. In March 2014, Ji A passed away, and in his will, he clearly specified that the homestead and house involved in the case were inherited by his younger daughter Ji C. When Ji C inherited the homestead and the house above ground in the case according to the will, he had a dispute with other children, including Ji B, and triggered multiple lawsuits. Ji B's husband, Guo Mou, believed that the homestead land built by Ji A was his contracted land, and Ji A was a non-agricultural household and had no right to apply for homestead land, and the registration act of the registration agency issuing a land certificate infringed on his right to land contract management, so in January 2017, he filed an administrative lawsuit with the Municipal Intermediate Court to request the revocation of the collective land use certificate issued to Ji A by the people's government of the county. Regarding whether the administrative act of the county people's government to issue the Collective Land Use Certificate to Ji A is legal, the court's view is as follows:

View of the Court of First Instance

The administrative act of the defendant county people's government in issuing the Collective Land Use Certificate to Ji A had the following illegal points: (1) Ji A was a non-agricultural household registration, and it was not qualified to apply for the registration of collective land use rights. (2) The construction time of the house filled in by the villagers' group in the land ownership certificate submitted by Ji A when applying for the issuance of the certificate is inconsistent with the actual construction time, according to the statements of Guo and the third person Ji C at the trial, the construction of the house on the land involved in the case began in 2009 and was completed in 2010. The remarks column in the land tenure certificate clearly states that this form is only for the use of land users who cannot provide land tenure certification materials by rural private builders before December 31, 1986, which plays the role of the source of land tenure. Therefore, the land tenure certificate submitted by Ji A cannot be used as the basis for the source of land tenure. (3) The land registration cadastral survey form submitted by the defendant lacks the signatures of the neighbors, and the defendant cannot prove that the relevant cadastral survey conducted by the defendant is true and legal. Therefore, the specific administrative act of the defendant in issuing the Collective Land Use Certificate for Ji A is unclear, the evidence is insufficient, and it violates the statutory procedures, and should be revoked.

View of the Court of Second Instance

On the legality of the issuance of the "Collective Land Use Certificate" involved in the case by the people's government of the county. Paragraph 1 of Article 9 of the Land Registration Measures stipulates: "When applying for land registration, the applicant shall submit the following materials according to different registration matters: (1) the application for land registration; (2) the applicant's identity certification materials; (3) the source of land ownership; (4) the cadastral questionnaire, the parcel map and the coordinates of the parcel boundary site; (5) the certificate of ownership of the attachments on the ground; (6) the tax payment or tax reduction certificate provided for by laws and regulations; and (7) other supporting materials provided for in these Measures." "In this case, Ji A submitted to the people's government of the county the "Land Registration Application Form", "IDENTITY Card", "Land Ownership Certificate" and other materials, and applied for the registration of the right to use the collective land involved in the case, and the county people's government issued the "Collective Land Use Certificate" to Ji A after review. However, according to the evidentiary materials in this case, Ji A was a resident when he applied for the "Collective Land Use Certificate", was not a member of the collective economic organization of the village committee, and there was no other evidence to prove that he had the right to obtain the right to use the collective land involved in the case. Moreover, the Land Tenure Certificate form completed when Ji A applied for certification is only applicable to houses built before December 31, 1986 when applying for certification, and the construction time of Ji A houses is not before December 31, 1986. In addition, the cadastral survey at the time of Ji A's application for certification lacked the signature confirmation of the neighbor. After trial, the court of first instance found that the facts of the issuance of the "Collective Land Use Certificate" involved in the case by the county people's government were unclear and the procedure was illegal, and based on this judgment, the revocation of the "Collective Land Use Certificate" was not improper, and this court upheld it. The appellant appealed that the facts of the first-instance judgment were unclear, etc., and the appeal requested to revoke the original judgment and change the judgment, but this court did not accept it because the reasoning was insufficient. In summary, the original judgment was correct and upheld by this court.

Retrial Court View

According to the facts of the original review and the evidentiary materials submitted by the parties, Ji A was originally a cadre of the county people's hospital, who moved his household registration back to the village after retiring in the 1970s and 1980s, and has been living in his ancestral home, while his younger daughter Ji C was responsible for taking care of his life until his death. Although Ji A's household registration information is registered as an urban resident's hukou, he himself has been living in the collective economic organization since his retirement, relying on the collective land owned by the collective economic organization as his basic life and residence guarantee, forming a stable production and living relationship. Therefore, when the original ancestral home of Ji A has fallen into disrepair, there are potential safety hazards, and it is impossible to continue to live, Ji A has the right to apply for the reconstruction of the ancestral house or apply to the villager group and the village committee to build a house in a different place according to the plan. The villagers' group and the village committee signed and sealed their consent, and the county's land bureau made an announcement after investigation and verification, and Neither Ji B nor her husband Guo raised any objections. It was not until The death of Ji A, due to the dispute over the right to use the homestead and the inheritance of the ownership of the house involved, guo initiated an administrative lawsuit in this case on the grounds that Ji A was not a member of a rural collective economic organization and infringed on his contracted land, which was obviously contrary to common sense.

In short, Since the 1970s and 1980s, Ji A has moved his household registration back to the village and lived in the original house for a long time, and after the ancestral house fell into disrepair, he had the right to apply for the right to use the homestead to build a house. Therefore, there were indeed inaccuracies in the original certification procedure and related evidence, but because Ji A had died in 2014 and could not be resolved by taking remedial measures, the revocation of the land certificate could not solve the issues of inheritance and the rights and interests claimed by Guo Qirong. The first-instance judgment revoking the land certificate, and the second-instance judgment rejecting the appeal and upholding the first-instance judgment are errors in the application of law and should be corrected. In its reply to Recommendation No. 3226 of the Third Session of the 13th National People's Congress on September 9, 2020, the Ministry of Natural Resources said that "farmers' right to use homestead land may be inherited by children of urban household registration and registered for real estate in accordance with the law". According to the Inheritance Law, the heir's house is inherited by the heir as an inheritance, and according to the principle of the integration of premises, the heir inherits the ownership of the house and the right to use the homestead, and the rural homestead cannot be inherited alone. The "Code of Practice for Real Estate Registration (Trial Implementation)" clearly stipulates that if a member of a rural collective economic organization (including urban residents) inherits a house and occupies the homestead, he or she may go through the registration of the right to confirm the right in accordance with the relevant provisions, and the right holder noted in the real estate register and the note column is the legal heir of the residence of the non-member of the peasant collective economic organization. The parties to the inheritance dispute in this case are all family members, and it is advisable to balance the rights and interests of all parties through consensus or mutual understanding and mutual accommodation. In summary, the county government's act of issuing land certificates to Ji A was not improper, and the first- and second-instance judgments found that the facts were unclear and the application of law was wrong, and should be corrected. In accordance with the law, the judgment revoked the second-instance judgment made by a provincial high court and the first-instance judgment made by a municipal intermediate court, and Guo's litigation claims were rejected.

Case Studies

It can be seen from the above cases that the collective land use certificates that urban residents have obtained are not all revoked, but should be based on individual cases to solve practical problems. The core of the question of whether urban residents can obtain the right to use homestead land and register real estate is the determination of the qualification of the subject of the right to use homestead land. From a legal point of view, an application for the use of residential land should first have the membership of the collective economic organization of the village where it is located, but the current laws and regulations do not stipulate the criteria for determining the membership of rural collective economic organizations, and there are different criteria for determining the membership of rural collective economic organizations in the management and judicial practice of residential land, mainly including: household registration standards, living guarantees (based on whether they actually produce and live in the peasant collective economic organizations), rights and obligations relationship standards, villagers' autonomy standards, land contracting relationship standards, and actual production and living location standards. Judging from the current judicial views and relevant cases, the determination of membership of rural collective economic organizations has adopted the principle of leniency, and its identification criteria usually apply pluralistic and composite standards rather than single criteria, not only from the formal examination of whether the parties' household registration belongs to rural residents, but also consider whether the parties actually produce and live in the rural area, whether the relationship between rights and obligations is formed, and whether the peasant collectives in which they are located agree and other relevant factors. In the above-mentioned cases, the courts of first instance and second instance only used household registration as the criterion for identifying members of the peasant collective, and ignored factors such as Ji A's original villager, living in the village for a long time, and the village's consent to his use of homesteads, which was obviously biased and could not substantively solve the problem. (The source of this article: judgment document network and China real estate official micro-public number)