In the field of expropriation and demolition and disposal of dilapidated houses, the most controversial issue is whether dangerous houses identified as Class D by the housing and urban development departments and appraisal agencies can be forcibly demolished by the administrative authorities in accordance with the law. As for whether the houses involved in the case are included in the scope of expropriation, it is another issue, and the Supreme People's Court has made it clear in its earlier judgments that expropriation and risk relief are not mutually exclusive, and the adjudication view of "abuse of power" has basically ceased to apply in recent years.
In the (2023) Zui Gao Fa Xing Shen No. 1679 Administrative Ruling, that is, the case of Cao Moumou et al. 4 suing a district ** in Xianning City, Hubei Province for compulsory demolition of dilapidated houses, the Supreme People's Court clearly put forward the adjudication view that the overall demolition of dangerous houses by district ** by taking emergency measures was "in accordance with the law and the procedure was not obviously improper", and rejected the parties' application for retrial.
So, is this adjudication view of the SPC uncontroversial? Does the county** really have the right to forcibly demolish dilapidated houses on their own under the premise of performing their compensation duties and complying with legal procedures?
The Supreme People's Court review that it is not improper for the district to take emergency measures to forcibly demolish dilapidated houses
The retrial applicant, Cao Moumou, and four others owned houses in a commercial city in a district of Xianning City, Hubei Province. The Municipal Housing Safety Appraisal Institute issued a housing safety appraisal report, assessing the house involved as a Class D dangerous house and recommending that it be demolished as a whole. Subsequently, a "Notice of Urban Dangerous Housing" was issued to the parties, and they were notified to demolish the houses as a whole.
Subsequently, the Municipal Bureau of Housing and Urban-Rural Development issued the "Notice on the Implementation of Emergency Safety Evacuation and Evacuation of Residents and Business Households of Class D Dilapidated Houses in XX Commercial City", and the District ** made the "Compensation and Resettlement Plan for the Overall Relief and Demolition of Class D Dilapidated Houses in XX Commercial City", and the Coordination Headquarters for the Overall Relief and Demolition of Class D Dilapidated Houses in XX Commercial City made the "Announcement on the Overall Removal and Demolition of Class D Dilapidated Houses in XX Commercial City", and the District ** made a "Compensation Decision for Demolition and Relief" for the houses involved. The compensation rights and interests enjoyed by Cao Moumou and others based on the ownership of the house are guaranteed.
Accordingly, the local ** carried out compulsory demolition of the dilapidated houses in the commercial city involved in the case. Cao Moumou and other 4 people were not satisfied with this and filed an administrative lawsuit with the court, requesting confirmation that the forced demolition of the district ** was illegal.
However, the Supreme People's Court put forward the following adjudication views in the retrial of this case:
1.The former Ministry of Construction's "Regulations on the Management of Urban Dangerous Houses" clarified that the county-level housing and urban-rural development department can demolish dangerous houses that need to be demolished immediately after identification, and the compulsory demolition of the district has authority and legal basis;
2.In this case, the district**, the Municipal Bureau of Housing and Urban-Rural Development, the Municipal Housing Safety Appraisal Institute and other departments performed the statutory procedures required for the overall demolition, and the compulsory demolition procedures were not obviously improper;
3.District ** has made a compensation decision for the demolition of the house involved in the case, and even if the parties have objections to the compensation decision, they should file a separate lawsuit for the compensation decision.
However, the author has different understandings and views on the above-mentioned adjudication views of the Supreme People's Court, and is willing to discuss with the majority of property owners and expropriated persons in the following.
Is there a legal basis for the administrative authorities to compel the demolition of dilapidated houses? 】
In the author's opinion, there is only one core issue in such disputes: that is, at the substantive level, do county** and its housing and construction departments have the right to forcibly demolish dangerous houses that need to be "immediately demolished as a whole"?
Article 9 of the Regulations on the Management of Urban Dangerous Houses stipulates as follows:
For houses that are identified as dangerous, they can generally be divided into the following four categories for treatment: (4) overall demolition. It is suitable for the whole dangerous house that has no repair value and needs to be demolished immediately.
The question is, does the wording of this article clearly give the county level ** and its housing and construction department the power to forcibly demolish dilapidated houses on their own?
Apparently not. This is only talking about "separable situation handling", and the overall demolition is a "situation, category" that is used to distinguish, not an act! As for the specific "how to deal with it" and "how to dismantle it as a whole", I didn't say it here!
The author here uses the familiar Article 65 of the "Urban and Rural Planning Law" to make a comparison, which is clear at a glance, and this Article 65 provides for the investigation and punishment of illegal construction in rural areas
If the rural construction planning permit is not obtained in accordance with the law in the township or village planning area or the construction is not carried out in accordance with the provisions of the rural construction planning permit, the township or town people shall order the construction to be stopped and corrected within a time limit; If it is not corrected within the time limit, it may be dismantled.
It can be seen that the "can be demolished" in the "Town and Country Planning Law" clearly means that "township **" has the right to demolish, and "demolition" here is a verb, not an expression of a certain situation or category.
From this comparison and the above analysis, it can be seen that the SPC may have reversed or reversed the word order of the departmental rules in its discussion of the reasons for the adjudication in this case, and thus came to a controversial conclusion in terms of logical expression.
Article 18 of the Regulations on the Administration of Urban Dangerous Houses points out that if the owner of the house refuses to repair and manage in accordance with the treatment recommendations, or the user has obstructive behavior, the real estate administrative department has the right to designate the relevant departments to repair on behalf of the relevant departments, or take other compulsory measures. The expenses incurred shall be borne by the person responsible.
Whether the "repair and management" here includes the overall demolition, we have no doubts. However, even if the overall demolition situation is included, whether "taking other compulsory measures" includes "compulsory demolition" is an important question that cannot be avoided.
The key problem is that the laws and administrative regulations do not give the county-level ** and its housing and construction departments the power to forcibly demolish dilapidated houses, and the "Regulations on the Management of Urban Dangerous Houses" is only a departmental regulation of the former Ministry of Construction!
Based on this, the author believes that if it is asserted that administrative organs such as county-level ** have the right to forcibly demolish dilapidated houses, then it is necessary to find clear provisions at a higher level than departmental rules, rather than just relying on the vague provisions in the "Provisions on the Administration of Urban Dangerous Houses" to "deduce" the views in the Supreme People's Court's judgment.
The Zhejiang Provincial Regulations on the Safety Management of Housing Use, which was last revised in 2020, is a much newer local regulation than the Regulations on the Administration of Urban Dangerous Housing. This "Regulations" relatively clearly give the county level the power to take emergency measures in the "crisis relief", but objectively speaking, there is still room for controversy.
For example, Article 28 stipulates that if a city or county (city, district) divided into districts believes that there is a real danger of a housing safety accident, it shall immediately start the emergency response plan for the safety of housing use, and may decide to take the following measures according to the actual situation, and no unit or individual shall obstruct it:
4) Demolition or damage of adjacent buildings, structures and related facilities;
5) Take necessary measures to eliminate the actual danger of dangerous houses;
6) Organize the evacuation of personnel;
7) Other measures that laws and regulations provide may be employed.
The phrase "organizing the evacuation of personnel" here is clear and feasible, and it is only the "adjacent building" that can be demolished, not the building itself. It is not clear whether the "necessary measures to eliminate the actual danger" for dangerous houses include compulsory demolition.
Article 43 of the Regulations stipulates that if the person responsible for the safety of housing use fails to take measures to solve the danger such as maintenance and reinforcement and demolition in a timely manner, the competent department of housing and urban-rural construction at or above the county level shall order the person in charge of housing and urban-rural construction to take measures to solve the danger within a time limit; and where measures to resolve the danger are not taken within the time limit, a fine of between 5,000 and 50,000 RMB is to be given, and where the circumstances are serious, a fine of between 50,000 and 100,000 RMB is to be given.
In other words, the article only stipulates that the housing and urban-rural development department has the right to "order the adoption of measures to relieve the danger within a time limit" and impose an administrative penalty on the owner of the house, but it still does not explicitly give it the power to take emergency measures for compulsory demolition.
However, under the circumstance that there is ambiguity in the above-mentioned departmental rules and local regulations, the "procedures" mentioned in the SPC's adjudication views can actually only be understood as general administrative procedures, rather than statutory procedures for relieving dangers and eliminating risks, which the author believes reflects the serious lag in legislation in this field.
Lawyer Zai Ming would like to remind the majority of "dilapidated housing" parties that in recent years, there have been obvious signs of adjustment in the SPC's adjudication views on "crisis relief and risk removal", and some adjudication results are obviously unfavorable to the parties, which deserves our great attention and sufficient vigilance.
Overall,The Supreme People's Court holds that as long as the county-level ** has performed the procedures of appraising the dangerous houses involved in the case in accordance with the law, issuing appraisal reports, issuing appraisal notices of dilapidated houses, making decisions on relieving dangerous houses and compensation and resettlement plans, and making decisions on compensation for relieving dangerous houses, and has performed steps such as notification, hearing statements and defenses, written reminders, and announcements in accordance with the requirements of general administrative procedures, it has the right to take emergency measures to forcibly demolish the houses. Everyone must be aware of this point of view and deal with it head-on, and cannot deliberately ignore and evade it.
However, Mr. Ming also emphasized that the SPC's adjudication views on individual cases do not have the effect of universal application. The circumstances of the case are very different, the situation of the house of Cao Moumou and other 4 people in this case is different from your situation, the steps and measures taken by the county ** are also different from your situation, and the judgment of the reconsideration organ or the court on the relevant dispute will also be different, which is the norm in rights relief.
The majority of parties involved in dilapidated houses should not be "discouraged" by several rulings of the Supreme People's Court, but should focus on their own cases, and if they believe that the houses involved in the case are "not dangerous", they should promptly implement remedies such as the housing safety appraisal report and the "decision on relieving danger and removing risks", and promptly file a reconsideration or lawsuit against the "decision on compensation for demolition and removal" and the "decision on expropriation and compensation" made for dilapidated houses, and strive for the maximum reasonable compensation benefits under the guidance of professional lawyers. (Wang Xiaoming).