Text: "Non-standard" real estate law expert, director of Yuewan Law Firm, chief lawyer Zhang Maorong
Tips: In view of the sensitive circumstances and sharp comments on some of the tweets on this account, there is a possibility that they will not be recommended or deleted, so please follow, star, like, and watch them so as not to miss them.**》SPC: The right to use "historical illegal construction" in Shenzhen exists independently of ownership and can be enforced!The last tweet "Latest!Shenzhen Court: Do not accept disputes over the right to use and rental income of "historical illegal buildings"!The author discloses that the Shenzhen court tends to completely prohibit the litigation of small property rights, and believes that the right to use illegal buildings can exist independently of ownership and generate value, because it does not involve the legality of ownership, so disputes should be within the scope of civil litigation accepted by the court.
In order to support this point, the author searched the China Judgment Network and found the following cases of the Supreme People's Court, and shared them, hoping that judges who adjudicated disputes over the right to use illegal buildings could see them.
Judgment documents: Shenzhen Tantou Co., Ltd., Jiang Zuxing and other outsiders to enforce objections to other civil rulings
Case No.: (2021) Supreme Law Min Shen No. 4448 and No. 4449.
Referee time: 202107.27
Basic facts of the case:
The real estate involved in the case, the factory, dormitory and office building of Songgang No. 4 Industrial Zone, Bao'an District, Shenzhen, was declared by Tantou Company in December 2009 as an illegal building left over from history, and the actual occupant was Ge Yonghua.
In 2018, due to Ge Yonghua's external debts, the right to use the real estate involved in the case was forced to be auctioned by the Shenzhen Intermediate People's Court, and Tantou Company raised an objection to the enforcement by outsiders.
Shenzhen Intermediate People's Court and Guangdong High People's Court's view:
The Shenzhen Intermediate People's Court (2019) Yue 03 Zhi Yi No. 1078 "Enforcement Ruling" held that Ge Yonghua, the person subject to enforcement, has the right to use the property. Although the outsider (referring to Tantou Company, the same below) is the right holder of the land occupied by the property involved in the case, the person subject to enforcement, Ge Yonghua, has paid the price for the use of the land through the interpretation of ***, and this case is only an auction of the right to use the property involved in the case within the scope of the land use period, not the ownership of the auctioned property, and there is no "illegal construction" as claimed by the outsider On the issue of legalization of the court's enforcement act, the auction did not harm the lawful rights and interests of the outsider, and the outsider's request to suspend the execution of the real estate involved in the case has no factual and legal basis, and this court does not support it.
Dissatisfied, Tantou Company filed a lawsuit against enforcement, which was rejected by the Shenzhen Intermediate People's Court (2020) Yue 03 Min Chu No. 8 in the first instance and the Guangdong Provincial High People's Court in the second instance (2020) Yue Min Zhong No. 3246.
Shenzhen Intermediate People's Court: The trend of comprehensive prohibition of "historical illegal construction" litigation is obvious!
Supreme Court Opinion:
The Supreme People's Court (2021) Zui Gao Fa Min Shen No. 4448 and No. 4449 "Shenzhen Tantou Co., Ltd., Jiang Zuxing and Other Civil Rulings on the Enforcement Objection of Outsiders in the Case" held that:
On the issue of whether the original judgment erred in applying the law. The Shenzhen Intermediate People's Court made an enforcement ruling to force the auction because the third party, Ge Yonghua, used the real estate involved in the caseRight to Use。However, Tantou Company's claim confirmed that the land on which the building in question was located belonged to Tantou Company, which had nothing to do with the subject matter of the enforcement of the above-mentioned ruling. In the present case, it was the building in question that was enforcedRight to UseIt is not the real right of the building, and the disposal principle of "the premises are integrated, and the house goes with the place" does not apply. Therefore, the original judgment was not improper in rejecting Tantou Company's lawsuit to confirm that the land involved in the case belonged to it.
On the issue of the ownership of the rights to the buildings involved in the case. In September 2003, the Tantou Village Committee and Tantou Company signed the "Land Use" Agreement with Quanming, agreeing to provide the land involved in the case to Quanming for use. It can be seen that during the contract period, the building involved in the caseRight to UseIt is not owned by Tantou Company. Therefore, the enforcement ruling disposes of the building involved in the caseRight to UseIt will not change the ownership of the building and will not damage the legitimate rights and interests of Tantou Company.
In December 2009, Tantou Company declared that the building involved in the case was a historical illegal building, but the administrative authorities did not confirm the ownership of the building involved in the case, and Tantou Company did not change the registration of the building involved in the case. Therefore, the declaration did not prove that the building involved in the case was owned by Tantou Company, nor did it affect the Shenzhen Intermediate People's Court's responsibility for the building involved in the caseRight to Useof the disposition. In the case that the building involved in the case was not registered in the name of Tantou Company, Tantou Company did not enjoy the right to exclude enforcement against the building in question, and the court of first instance had the right to enforce the building in questionRight to Usedispose of it.
Therefore, the original ruling rejected Tantou Company's lawsuit requesting confirmation that the land involved in the case belonged to it, holding that Tantou Company did not enjoy the civil right to exclude enforcement against the building in question, and that the application of law was correct and not improper.
According to the relevant legal documents - (2011) Shen Zhong Fa Hui Zhi Zi No. 965 Notice of Assistance in Enforcement, the enforcement property of the case is the rent of the historical illegal construction of Ge Yonghua by Shenzhen Fanxing Investment and Development, which is not involved in the case
In this case, the Shenzhen Intermediate People's Court held that the rental income of Shenzhen's "historical illegal construction" had nothing to do with the illegality of the building and could be enforced
Court: "Historical illegal construction" should be ** management!**Don't worry about me, don't look for me!
Lawyer Zhang Maorong: Do not treat Shenzhen's "historical illegal construction" with "double standards"!
1. In this case, from the Shenzhen Intermediate People's Court to the Guangdong High People's Court, and then to the Supreme Court, it was unanimously held that the right to use the historical illegal building in Shenzhen had nothing to do with the property right (ownership), and the enforcement of the right of use and rental income did not need to consider the actual property owner, and accordingly rejected the enforcement objection raised by Tantou Company as the property owner of the historical illegal building involved in the case
2. Compare the previous article "Latest!Shenzhen Court: Do not accept disputes over the right to use and rental income of "historical illegal buildings"!On November 24, 2023, the Shenzhen Intermediate People's Court ruled to dismiss the lawsuit over the dispute over the right to use and rental income of historical illegal buildings on the grounds that "the right of use is derived from ownership, and the requirement to divide the right of use and rental income is essentially a requirement for the confirmation and division of relevant property rights, which does not fall within the scope of civil litigation accepted by the court".
3. When it is enforced, it can be separated from the illegality of property rights, recognize the independence of the right to use historical illegal buildings and rental income, and auction them for enforcement;When a dispute arises, the right to use is derived from the ownership, the ownership is illegal, the right to use and even the rental income is not legal, it will not be tried, a proper "double standard"!
4. If it is not accepted, the parties can only solve it by themselves, and only blocking and not slacking can only accumulate more social contradictions and cause instability. Shenzhen's historical illegal construction accounts for more than 50% of Shenzhen's housing market, and disputes over the right to use objectively exist.