On October 15, 2012, the plaintiff Qiao and the defendant Jia signed a house exchange agreement, which stipulated that the defendant Jia would exchange a property next to the Dongwang Bus Station with three façade houses on the X floor of Building X, Village X, Yingchun Street, Yaodu District, where the plaintiff had property rights. According to the content of the agreement, the defendant Jia paid the plaintiff Qiao 30,000 yuan, and the plaintiff handed over the real estate certificate to the defendant. After the exchange of houses, the defendant has been using the house until now, and the plaintiff has also actually used the defendant's property next to the Dongwang bus station, and the agreement between the two parties has been actually performed for two years. The plaintiff claimed that the house transferred by the defendant was the collective land of Dongwang Village, and the defendant was unable to go through the property rights transfer procedures for the plaintiff, claiming that the agreement was invalid. The parties could not reach an agreement on the return of the property and sued the court.
1) The house exchange agreement signed between the defendant and the plaintiff on October 15, 2012 complies with the law and is legal and valid.
The defendant's wife and the plaintiff's mother were siblings. The agreement between the two parties to enter into the exchange of the two façade properties was signed on the basis of equal and voluntary consultation. The temporary inability to transfer ownership of the property was known to both parties at the time of signing this agreement. The agreement signed between the defendant and the plaintiff did not violate any mandatory provisions of the law, and at the same time met the three conditions for civil acts stipulated in Article 55 of the General Principles of the Civil Law: 1. The actor has the corresponding capacity to act;2. Opinions are true;3. Do not violate the law or the public interest. The validity of such a contract is not determined by law that it must be determined by whether or not a property right is registered. Article 15 of the Property Law of the People's Republic of China also has clear provisions on the validity of immovable property contracts: unless otherwise provided by law or otherwise agreed in the contract, a contract entered into between the parties regarding the establishment, modification, transfer and extinction of immovable property rights shall take effect upon the conclusion of the contractIf the property right is not registered, the validity of the contract shall not be affected.
2) Whether the plaintiff Qiao is an urban (rural) household registration or a non-resident of the village, it does not affect the validity of the sales contract (house exchange agreement).
The determination of the validity of a contract shall be based on the requirements for the validity of the contract as prescribed by law. Whether the contract involved in this case is valid depends on whether it violates the mandatory provisions of laws and administrative regulations. The Opinions of the Supreme People's Court on Several Issues Concerning the Implementation of Civil Policies clearly stipulate that the attachments on the base, such as houses, trees, toilets, etc., shall always belong to the members. Members have the right to buy, sell and rent housing. After the house is sold, the right to use the homestead is transferred to the new owner, but the ownership of the homestead remains with the original collective organization. This is completely consistent with the provisions of Article 10, Paragraph 4 of the Constitution of our country, that is, the ownership of homestead land is prohibited from buying and selling, and the right to use homestead land can be transferred. The determination of whether a contract is valid cannot be determined on the basis of local regulations, rules or departmental rules (not laws and administrative regulations). However, looking at the Land Management Law, Contract Law and other legal provisions, there is no mandatory provision that the purchase of rural houses by urban or non-village residents is invalid. In addition, it should be made clear that it must be a violation of the provisions of laws and administrative regulations on its effectiveness, and if it is only a violation of administrative regulations, the act cannot be found to be invalid. According to Article 14 of the Interpretation (II) of the Contract Law and Article 52 (5) of the Contract Law, "mandatory provisions" refer to mandatory provisions of validity. Therefore, if the law does not expressly stipulate that the act is invalid, the legal provision merely stipulates that "it shall not be .......""Forbidden......"Neither of them can be found to be invalid. Even if the house on the rural homestead is **, it does not change the nature of the homestead, and it still belongs to the nature of rural construction land. Therefore, if the rural homestead house sales contract violates the identity of the transferee, there is no statutory reason for invalidity. Even if the transfer registration procedures cannot be completed without approval, it is only because the contract cannot be performed, and the contract cannot be arbitrarily determined to be invalid.
Therefore, the plaintiff only cited the provisions of the administrative departmental regulations to explain that the invalidity of the contract between the two parties for the exchange of houses violated the provisions of the Property Law and the Contract Law of the People's Republic of China. The Supreme People's Court's Final Judgment (2006) Min Yi Zhong Zi No. 26 case and judgment are similar to those of this case. In the end, the people's court ruled that the contract was valid, which also proved this. The Supreme People's Court's 1992 Min Ta Zi No. 8 reply also held that the sale and purchase of rural houses in accordance with the agreement to pay for the houses and manage the houses is valid.
3) So far, there has not been any law or administrative regulation in China that explicitly prohibits the transfer of rural houses.
A lawsuit to confirm the invalidity of a contract shall be confirmed in strict accordance with the provisions of the Contract Law. The plaintiff's litigation behavior is contrary to the will of the law and violates the principle of good faith and fairness. The legislative intent of the Land Administration Law prohibits the separate transfer of rural collective use rights. However, in the case of the transfer of ownership of rural houses, the transfer of the right to use the homestead under the property is not prohibited, but the homestead cannot be applied for after the sale. The two storefronts next to Dongwang Bus Station are not owner-occupied houses, but storefronts that can be rented out. When the parties entered into the swap agreement, they were well aware of the nature of the land for the house. There are no restrictions on the transfer of the house by the local villagers' committee (with a certificate from the village committee). The content of the agreement signed by the two parties does not damage the legitimate rights and interests of the state, the collective or a third party. In addition, the parties occupied the exchanged house by actual delivery for more than two years, during which time no objection was raised. The contents of the contract have been fully fulfilled. In this case, the housing swap agreement signed by the two parties is found to be invalid and has no legal basis. The people's court shall reject the plaintiff's litigation claim in accordance with law.
The court rejected the plaintiff's claim in accordance with Article 15 of the Property Law of the People's Republic of China because the plaintiff lacked legal basisThe case acceptance fee of 1,000 yuan is halved, and the fee of 500 yuan is borne by the plaintiff Qiao.
Civil Judgment of Yaodu District People's Court of Linfen City, Shanxi Province (2015) Linyao Min Chu Zi No. 150;
Civil Ruling of the Intermediate People's Court of Linfen City, Shanxi Province (2015) Lin Min Zhong Zi No. 00701.
The focus of the contract dispute between the plaintiff and the defendant was whether the house exchange agreement signed by the two parties was valid and the use of the prohibitive provisions on rural housing. The main reasons for the defendant's success were:
1. The two-storey façade built next to the bus station in Dongwang Village, Duandian Township, Yaodu District, Linfen City, provided by the defendant is the land occupied by the bankrupt enterprise of the village, which is in the nature of non-agricultural construction land, which is in line with the overall land use plan of the village, and there is no identity restriction on the owner of the façade house, the house is now actually occupied and rented by Qiao, and the house is within the scope of demolition and reconstruction, and the land use certificate and real estate certificate will be issued according to the actual area after the completion of the transformation of the urban village.
2. There is no clear provision in any law on the validity of urban residents' purchase of rural houses, and the agreements signed by both parties are all knowing, and there is no fraud or major misunderstanding, let alone any coercion or taking advantage of others' danger. The village committee also did not prohibit such houses. The main reason in this case is that the plaintiff did not comply with the provisions of the agreement, did not understand the relevant provisions of laws and regulations, and violated the principle of good faith, resulting in the lawsuit. At the same time, it also wastes the defendant's time, manpower, money, and resources, and even more wastes relevant social resources.
3. In this case, the lawyer used a lot of experience and skills in the hope of a speedy ruling, and used many alternative methods to communicate and negotiate with the relevant institutions, and finally achieved good results. However, there were many setbacks and difficulties throughout the process. Although the lawyer cannot control some situations in the trial, he is not afraid of trouble as much as possible, so that the procedure is as perfect and legal as possible, and does not leave hidden dangers in the future litigation process.
In recent years, with the transformation of old cities and the acceleration of the construction of urban villages, the phenomenon of expropriation of housing occupation is more common, resulting in the emergence of such houses in the suburbs of cities, and a large part of them are purchased by urban residents through sales and purchases. There is no clear law on the validity of the purchase of rural houses by urban residents, and the agreements signed by both parties are all knowing, and there is no fraud or major misunderstanding, let alone any coercion or taking advantage of others. The village committee also did not prohibit such houses. The judge should follow the spirit of jurisprudence, and the court shall, in the absence of an express provision for the invalidity of such a contract, consider whether it complies with the basic principles of the Civil Law (equality, voluntariness, fairness, honesty and credit), and in combination with the opinions of the grassroots organization and the village committee, and make a judgment on the validity of the contract in full accordance with the principle of villagers' self-control practiced in China.
There are many legal issues behind the sale and purchase of rural houses, and they involve large interests, so we should comprehensively consider and choose carefully on this issue, and constantly improve the relevant laws and regulations on rural housing for homesteads in China.
Relevant legal knowledge:
What is the compensation standard for shantytown reconstruction?
There are two types of compensation for shantytown rehabilitation: cash compensation and house replacement. It depends on local policies and circumstances.
The shantytown renovation is a popular project launched by China to renovate dilapidated urban housing and improve the housing conditions of families in difficulty. All localities should formulate specific resettlement compensation measures in accordance with the relevant provisions of the Chinese state, carry out expropriation in accordance with the law, and safeguard the legitimate rights and interests of the masses. Where the renovation of shantytowns involves the expropriation of collective land, preliminary work such as land expropriation and compensation and resettlement should be done in accordance with the relevant laws and regulations of the Chinese state. All localities can explore the method of adopting joint property rights and do a good job in housing resettlement for residents of shantytowns with economic difficulties.
1. Monetary compensation.
Monetary compensation is a professional appraisal of the demolished house by a professional appraisal agency on different statutory grounds to generate a multi-component compensation amount based on evidence. The following are three statutory grounds for assessment:
1) Market appraisal value: refers to the real estate market of the demolished house, which is an activity that is estimated and judged by a professional appraisal agency that meets the regulations, according to the purpose of valuation, in accordance with the valuation principles, in accordance with the valuation procedure, selects the appropriate valuation method, and on the basis of a comprehensive analysis of the factors affecting the real estate.
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