■ The author of this article: Zhang Kun Beijing Zaiming Law Firm
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Xu Jia (pseudonym) is the only daughter of the Xu family, as early as April 2, 2009, Xu Jia's parents made a will: if either of the two parties dies, the property rights in the houses shared by both parties in a place in y street in Wuxi City belong to their respective ownership shares, and they are inherited by their daughter Xu Jia.
On April 8, 2009, Xu's father and Xu's mother notarized their will.
On May 27, 2012, Xu Jia's mother passed away. The share of the house in this case that belonged to Xu Jia's mother was inherited by Xu Jia.
On September 9, 2020, the house in this case was forcibly demolished by the y Street Safety Production Committee in the name of de-danger relief, and a large number of items in the house were buried under the rubble and suffered heavy losses. At the same time, Ms. Xu heard that the area where the house in this case is located is also facing demolition. After many considerations, Ms. Xu decided to protect her legitimate rights and interests through legal channels.
Subsequently, Ms. Xu approached Lawyer Zhang Kun and Lawyer Jiang Weixing at Beijing Zaiming Law Firm. The lawyer analyzed Ms. Xu's case information and immediately sued the Y Street Office against the forced demolition of Ms. Xu's house by the Y Street Safety Production Committee. At the same time, the application for government information disclosure is used to verify the relevant expropriation decision and its expropriation announcement and other documents of the block where Ms. Xu's house is located, so as to determine whether the plot involves expropriation. Before the trial of the case confirming the illegal demolition, the client received the "Notice of Open Government Information" and its annex, and learned that the house involved in the case was within the scope of expropriation.
In the end, through the representation of lawyers in this case, the court judgment confirmed that the defendant in this case, y Street Office, forcibly demolished the client's house in violation of the law, and the legitimate rights and interests of the client were protected.
First, the issue of confirming the qualifications of the plaintiff's subject
The case involves testamentary succession. What is Testamentary Succession? As the name suggests, testamentary succession is when the heir disposes of his or her personal property by making a will and can designate the heirs of the will. At present, the testator can make a will orally, audio or video recording, printing, self-writing, proxy, and notarization. So when does testamentary succession occur? Simply put, the testator establishes a legal and valid will, and when the testator dies, the execution begins according to the will established by the testator, and the inheritance occurs.
According to the information provided by the client, it can be made clear that Xu Jia's parents are the owners of the house involved in the case. Moreover, Xu Jia's parents made a will and notarized it by a notary office, and the will was legal and valid. After the death of Xu Jia's mother, according to the will made by Xu Jia's mother before her death, Xu Jia, as the designated heir of her mother, inherited the ownership of the house involved in the case by her mother. Therefore, the plaintiffs in this case are Xu Jia and Xu Jia's father.
Second, the question of whether the subject of the compulsory demolition of the house in this case has the qualification of the defendant
How to identify the defendant in administrative litigation generally follows the principle of "who acts, who is the defendant; the actor can be punished". The Y Street Safety Production Committee involved in the case was established by the Y Street Office, which is an institution that does not have the ability to independently bear legal responsibility, and the Y Street Office, as the establishment organ, should bear full responsibility for the forced demolition of the Y Street Safety Production Committee. It can be confirmed that the y street safety production committee cannot be the defendant in this case, and the defendant in this case is the y street office.
Third, the forced demolition of houses is the question of whether the act of de-danger relief is legal
The house involved in the case was demolished in the name of the dangerous house, based on the "test report" made by the appraisal agency entrusted by the y street office to the house involved in the case, and the "test report" determined that the danger level of the house involved in the case was rated as d, the load-bearing structure of the house can no longer meet the requirements for safe use, the house is in a dangerous state, at present, the whole house has constituted a dangerous house. Therefore, the y-street safety production committee carried out the act of understanding the dangerous disposal of the houses involved in the case, that is, compulsory demolition.
Fourth, the main focus of the dispute in this case is whether the de-crisis relief act carried out by the defendant y street office is legal.
(1) According to the provisions of Article 7 and The second paragraph of Article 12 of the Provisions on the Administration of Dangerous Houses in Cities, the applicant who may submit the appraisal of dangerous houses in this case is the owner or user of the house in this case. In addition, according to Article 12 of the Wuxi Urban Housing Safety Management Regulations, even if it is old and there is a certain degree of safety hazards, the application for the appraisal of dangerous houses in this case should be applied for by the owner of the house or the user of the house, and the defendant y street has no right to apply on its behalf.
(2) In addition, the "Test Report" issued by the appraisal institution is also illegal. Only one person signed the testing personnel, and the corresponding testing qualification certificate was not submitted, so the test report could not be used as the basis for this case at all.
(3) The de-crisis de-danger conduct carried out by the defendant's y street office is beyond its authority.
According to Article 17 of the Provisions on the Administration of Dangerous Houses in Cities, if the owner of the house refuses to be repaired and managed in accordance with the recommendations of the appraisal agency, the competent administrative department of real estate has the right to designate a relevant department to carry out repairs on behalf of the owner of the house, or to take other compulsory measures to relieve the danger of the dangerous house. Therefore, it can be seen that only the owner of the house and the administrative department in charge of real estate have the right to carry out the de-danger of the identified dangerous house, and the defendant in this case, the y street office, is not the owner of the house involved in the case, nor is it the real estate administrative department, and has no right to de-endanger the house involved in the case.
(4) The procedures for de-endangerment conduct carried out by the defendant's y street office are illegal.
Although the Provisions on the Administration of Dangerous Houses in Cities do not clearly stipulate the statutory procedures for the demolition of dangerous houses, the Administrative Compulsory Law has made clear provisions on the administrative compulsory procedures, and according to the provisions of Articles 34 to 38 of the Administrative Compulsory Housing Law, the parties should be urged to perform their obligations in a timely manner through written reminders and hear the parties' statements and defenses; however, the defendant street office in this case made a "Notice" and "Publicity" on September 9, 2020, and carried out the demolition of the houses involved on the same day, without written reminder. Requiring a party to perform its obligations and failing to hear the parties' statements and defenses violates the above provisions of the Administrative Compulsory Enforcement Law.
(5) The purpose of the de-crisis relief act carried out by the defendant's y street office was obviously improper.
The house involved in the case is already within the scope of expropriation, and should have been demolished in accordance with the expropriation procedures; even if the house is really a dangerous house, the danger can be eliminated through expropriation. However, the defendant y street office passed the dangerous house appraisal procedure and forcibly demolished the house involved in the case, which was obviously to circumvent the normal expropriation procedure, and the administrative purpose was obviously improper.
Fifth, select the main body of the housing hazard level appraisal agency
Housing safety appraisal institutions are the competent real estate administrative departments of local governments at or above the county level. Combined with the above analysis in this article, it can be seen that only the owner of the house and the administrative department of real estate have the right to carry out the act of de-danger. We are clearly aware that the application for the appraisal of the dangerous house of the house involved in the case should be applied for by the owner or user of the house. At the same time, it can be confirmed that the defendant y street office is not the administrative organ for the management of urban dangerous houses within its jurisdiction, so it has no right to entrust an appraisal agency to conduct an appraisal of the houses involved in the case. The court confirmed that the defendant y street office forcibly demolished the house involved in the case illegally, and the legitimate rights and interests of the client were safeguarded.
Zhang Kun, a lawyer at Beijing Zaiming Law Firm, reminds you that when your house is faced with forced demolition in the name of a dangerous house, in addition to paying attention to whether the forced demolition behavior complies with the statutory compulsory demolition procedures, you must also pay attention to the information such as the institution that made the appraisal of the dangerous house. At the same time, we must keep the documents issued by the relevant departments, consult professional lawyers at the first time, and safeguard our legitimate rights and interests through legal channels.
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