Topic import
topic introduction
Many residential frontages, homeowners may take advantage of the street to change the house into a business house, in real life is common to use the street house to open a supermarket, open a restaurant, etc., this is the "residential to business". If the formalities for "housing to commercial" housing are completed in accordance with the law, and it is a legal "residential to commercial" house, then the expropriation of "residential to commercial" housing can only be compensated according to the compensation standard for ordinary housing?The following is an answer for you through the case of the Supreme People's Court.
Brief facts of the case
The contents of the house ownership certificate registered in Mr. Jia's name are: the house is located in Jiuyuan District, and the design is for residential purposes. Bao Jiuyuan Guoyong (2001) No. 4647 state-owned land use right certificate records the use area of 11490 square meters, the type of use right is state-owned allocated land. The catering service license for the individual business license (snack bar, noodle dish) submitted by Mr. Jia is valid until April 27, 2016, and the tax registration certificate is issued on June 1, 2010. Healthy Road, Jiuyuan District.
The No. 8 and No. 9 neighborhoods are old city reconstruction projects, and with the approval of the people of Baotou City, Jiuyuan District is responsible for the expropriation of the plot. On February 16, 2015, Jiuyuan District ** to Jiuyuan District Health Road.
The No. 8 and No. 9 Neighborhood Old City Reconstruction Project issued the "Announcement on Housing Expropriation Decision", deciding to expropriate the houses west of the fifth row of houses in the east of Jiankang Road (excluding the fifth row), east of Jiankang Road, north of Wulan Road, and south of Xinchun Street, with a total area of 42 acres and a scale of 9,163 square meters. On the same day, Jiuyuan District** released the "Jiuyuan District Health Road.
The Plan for the Expropriation and Compensation of Houses on State-owned Land in the No. 8 and No. 9 Neighborhoods (hereinafter referred to as the Expropriation and Compensation Plan) clarifies the period of expropriation, the method of compensation and resettlement for housing expropriation, and the incentive measures. The compensation for monetary compensation within the scope of this housing expropriation is 4,000 square meters, or compensation is determined by the assessment of an appraisal agency with corresponding qualificationsThe expropriated house is resettled in the new residential area on the spot, placed in the Runze Sunshine Community, and the property rights are exchanged in accordance with the legal and valid "Housing Ownership Certificate" "Levy one and return one" principle, and the part of the residential relocation area that exceeds the approved relocation area shall be settled according to the market price, and the basic price is 4,000 yuan square meters, and the specific floor price difference is shown in the attached table.
Demolished viewpoint
The land and houses used by Mr. Jia were within the scope of the above-mentioned expropriation, and because Mr. Jia believed that his house was for commercial use, Jiuyuan District** did not compensate for the commercial property, resulting in the failure of the two parties to reach a compensation agreement within the contract period. The Baotou Jiuding Real Estate Valuation Transaction made the Baotou Jiuding Appraisal Zheng Zi (2015) No. 0012 "Real Estate Valuation Report" and sent it to Mr. Jia, who did not raise any objection. On April 28, 2015, Jiuyuan District** made a decision on the expropriation and compensation of No. 32 houses in accordance with the Regulations on the Expropriation and Compensation of Houses on State-owned Land, the expropriation compensation plan, and the assessment report. and served the decision on compensation for the expropriation of House No. 32 and the Announcement to Mr. Jia. Mr. Jia believed that the decision on expropriation and compensation for house No. 32 made by Jiuyuan District ** was illegal and infringed on his legitimate rights and interests, so he filed a lawsuit.
Court Views
According to the SPC, Article 2 of the Regulations on the Expropriation and Compensation of Houses on State-owned Land stipulates that "for the needs of the public interest, the owners of the expropriated houses (hereinafter referred to as the expropriated persons) shall be fairly compensated for the expropriation of the houses of units and individuals on state-owned land." "Therefore, when it is necessary to expropriate a house for the public interest, the legitimate rights and interests of the owner of the expropriated house should be fully protected. In the process of expropriation of urban housing, special attention should be paid to the lawful and reasonable resolution of the remaining problems that have been unresolved for a long time. In the fourth part of the "Improving Relevant Policies and Measures and Properly Solving the Remaining Problems", the State Office of the People's Republic of China Invention Dian 2003 No. 42 "Emergency Notice of the General Office on Conscientiously Doing a Good Job in Urban Housing Demolition and Maintaining Social Stability" (hereinafter referred to as Document No. 42) states: "All localities should take positive and effective measures in line with the principle of seeking truth from facts to effectively solve the remaining problems that have been delayed for a long time in the demolition of urban houses. For the compensation for the property rights within the scope of the demolition and relocation that are residential but have obtained a business license in accordance with the law, all localities may give appropriate compensation according to the actual situation such as their business conditions, years of operation, and tax payment. Circular No. 42 establishes the basic principle for resolving the long-delayed problems in the process of urban housing demolition, that is, the treatment of the remaining problems cannot be one-size-fits-all, and no compensation will be given to the relevant operation of the housing in accordance with the nature of property rights.
In this case, although the property rights of the property in question were residential, Mr. Jia submitted evidence such as a business license to the trial court to prove that the property in question was used for catering business, which met the applicable condition of "appropriate compensation shall be given" in Circular No. 42. Although Mr. Jia only submitted the tax registration certificate and did not provide the tax payment certificate, Mr. Jia has always claimed that he is an extremely poor employee and meets the conditions of tax exemption. The court of first instance did not further ascertain the relevant facts and examine whether the house in question met the circumstances for the application of Circular No. 42, but directly confirmed that the decision to expropriate and compensate No. 32 was lawful and improper. In addition, the decision on compensation for the expropriation of Housing No. 32 applied the abolished Interim Measures for Expropriation and Compensation, which was an error in the application of law. Therefore, this court holds that the primary evidence of the facts ascertained by the trial court is insufficient, and the application of laws and regulations is indeed erroneous. In this case, it is still necessary to ascertain the turnover of the house involved in the case, the amount of tax payable or the amount of tax exempted, etc., in order to determine the amount of compensation. Specific factual issues to be ascertained include: the area of the part of the premises in question that was used for business;Actual business performance, including annual or monthly turnover;The time period of operation;Tax payable or exempted;When Mr. Jia applied for retrial, he had already provided the tax exemption certificate issued by the tax office to this court, which needs to be cross-examinedThe assessment report involved in the case applied the abolished interim measures for local expropriation and compensation, so it is necessary to ascertain whether the assessment amount will change according to the new expropriation and compensation measures.
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