Legal transfer of use right of Rural Homestead

             [Dali]: famous expert lawyer lawyer Ma Peijie

   Recently, about the countryside homestead right of use cases showed rapid upward trend, the main reason is a property revaluation, housing demolition relates to huge compensation, government demolitions of loss compensation. In the litigation, the parties to the countryside homestead right of use effectiveness of great controversy, transfer to Dali lawyer Ma Peijie, according to China's current law, mainly discusses the transfer potency question, we hope to help.

   A,The relevant provisions of the law

   The countryside homestead right of use, refers to the rural residents within legal limits on land possession, use, income rights. For the transfer of use right of rural homestead, several levels of our laws have provisions, but there are conflicts and contradiction, but, according to the provisions of the law level of conflict resolution, transfer of use right of rural homestead is allowed.

   (a) the provisions of the laws on the transfer of use right of Rural Homestead

   "Property law" 153rd stipulates: "the right to use land acquisition, exercise and transfer, the law and relevant state regulations apply to the land administration law." And the "land management law" sixty-second paragraph third: "rural villagers sell, rental housing, and then apply for homestead, shall not be approved." This is not the transfer of Homestead Land Use Rights prohibit, only for the peasant homestead allocation eligibility restrictions on. "General principles of civil law" article eightieth paragraph third "land may not be sold, leased, mortgaged or transferred by other illegal means", this is 1987 to begin the implementation of the law, whether the "land" including "land use right", or only refers to the ownership of the land, or two kinds of rights have both at the same time? In 1988 through the "constitution" of the second amendment to the constitution of tenth of the fourth paragraph is amended as: "no organization or individual may encroach upon, the sale or other forms of illegal transfer of land. The right to the use of land may be transferred according to law." "The constitution" the second amendment does not take into account the different categories of land, did not consider the different ownership of land, but the provisions of "all the land" use right can be transferred according to law "". "The general principles of the civil law" provisions can only understand eightieth section third of land ownership transfer restriction, otherwise unconstitutional. Therefore, this provision does not belong to the transfer of land use right of prohibition.

   (two) the administrative regulations on notice "the countryside homestead right to use the transfer of the general office of the State Council on strengthening the management of land transfer is prohibited land speculation" (released in May 6, 1999) (hereinafter referred to as the "notice" provisions): farmers housing shall not be sold to city residents, city residents may not approve the collectively owned land occupied by the farmers to build residential, about departments shall be illegal construction and purchase of residential land use permits issued and real estate license. According to go with the principle, this is the transfer of use right of rural homestead provisions, but the "notification" is not the administrative regulations. According to the current "administrative regulations to establish procedures regulations" provisions on the decision and announced, "the draft administrative rules and regulations by the State Council executive meeting examined and approved by the State Council," " submitted to the Prime Minister signed a decree of the State Council promulgated." signed, "announced the administrative regulations of the State Council order specified in the laws and administrative rules and regulations implementation date". On the basis of the formulation of administrative regulations in effect at the time of the "Provisional Regulations" program third "name of administrative regulations, rules and measures for regulation." Article fourteenth "drafts of administrative regulations by the State Council executive meeting examined, or by the premier of the State Council for approval." Article fifteenth "by the State Council executive meeting of the premier of the State Council or the approval of the administrative regulations, issued by the State Council, or approved by the State Council, the competent departments of the state council." from the name to see, the "notice" name does not comply with regulations procedures; from the process, the "notice" only through the office of the State Council meeting, not a State Council executive after the statutory meeting, the prime minister or by the State Council approval procedures; from the distribution process, the "Notice of the general" only by the office of the State Council issued, does not meet the statutory "issued by the State Council, or by the State Council for approval, the competent departments of the State Council issued". In addition, the notice also not released date of implementation. Therefore, the "notice" is not the administrative rules and regulations, administrative regulations did not make provisions on the transfer of rural land use right.

   (three) the administrative regulations on rural land use right transfer to the provisions of the land transfer regulations level stipulated the state land administration "to determine land ownership and use right of certain provisions of the" 169th "homestead right of use may not be transferred separately. Built in the homestead housing ownership transfer, the homestead right of use and transfer". This prohibits is transferred separately, but its effectiveness is the administrative rules and regulations. Four, conclusion, according to the general principles of the civil law, no law prohibited all may, according to the "contract law" article fifty-second, mandatory only in violation of laws, administrative regulations and the contract is invalid.

Therefore, to the countryside homestead right of use to transfer or sale commercial housing built in the last act, mandatory provisions did not violate the law, administrative regulations, is in violation of the policy provisions and administrative rules of the general office of the State Council shall, in accordance with the law effective.

   Two,The countryside homestead right of use to transfer conditions

   Rural residential land use rights can be transferred, but must meet the following conditions:

   1, the economic organization (village or the village collective members) agreed;

   2, the transferor and transferee member for the same economic organization (the village);

   3, the transfer of accounts have been moved out of the village or transfer due to inheritance lead to "more than one house or room". If the transfer is one of a house, be clear that no longer apply for homestead, and there is evidence that the housing security;   The transfer of the transfer of homestead, to apply for the fund, will not be approved.

   4, the transferee shall not violate the "one of a house" principle, namely the assignee without residence in an assignment;

   In 5, the homestead right of use alone cannot transfer, shall be assigned with housing.

Three,Agreement on the transfer of countryside homestead right of use

   Agreement on the transfer of the rural homestead:
The transferor (hereinafter referred to as Party A)
Transferee: (hereinafter called party b)
A and B sides on the land use right transfer matters, the voluntary, equality, friendly consultations, reached the following agreement transfer:
One, the homestead is located, area
Party A will remove the located -- -- -- homestead transfer to B, the specific location of number and area (by Party B to Party A in the name of bidder) or touch, after determining the.
The homestead right to use Party B enjoy the.
Two, the transfer amount
Transfer price in the case of the renminbi -- million yuan.
Three, terms of payment and time limit
Party A Party B in the original housing demolition to Party A within 3 days after payment of RMB -- -- -- days million yuan, pay the balance and delivered to Party B in made use of the land.
Four, property ownership
1 in the homestead house by Party B to B all funded construction, real estate.
The 2 building by Party A in accordance with the procedures, the expenses shall be borne by Party b..
The 3 housing is completed, in the premise of legal policy permission, Party A shall unconditionally cooperate with Party B will land certificate and the property permits to Party B name, related expenses involved shall be borne by Party B.
Five, the liability for breach of contract
After the signing of this agreement, any party shall go.
If Party B shall refund to Party B on the homestead transfer funds 250000 yuan, and pay breach of contract damages -- -- million yuan, such as the loss caused by Party B, Party B shall also compensate for the loss (including housing, decoration engineering, and real estate value-added part); if Party B back, then paid land transfer payments as a default payment paid to Party A.
Six, other matters
Matters not covered both sides negotiate.
The entry into force of the conditions, protocol seven
This Agreement shall become effective after its signing by both parties.
Eight, the agreement a number
Two copies of this agreement, each party shall hold one copy.
Party A: Party b:
Date

Four, the legal responsibility and dispute settlement

  According to "the PRC Land Management"Rule seventy-third: the sale or other forms of illegal transfer of land, the land administrative departments of the people's government at or above the county level shall confiscate the illegal income; for violation of the overall land use planning unauthorized conversion of agricultural land into construction land, dismantle the illegal transfer of land in new buildings and other facilities on the restoration of land restitution,, to comply with the overall land use planning, the confiscation of illegal transfer of land in new buildings and other facilities; and may be concurrently fined; the leading persons directly in charge and other persons directly responsible in accordance with the law, shall be given administrative sanctions; constitute a crime, shall be investigated for criminal responsibility according to law.

If the countryside homestead right of use agreement disputes, the parties may bring a lawsuit to the people's court, safeguard their legitimate rights and interests.