Legal information

Introduction to the article: The house that was promised to be compensated for expropriation was found to be an illegal construction. Will compensation be given?

Part One: Case Story

In 1995, the Land and Resources Bureau of a certain county approved Deng's housing land of 300 square meters on the village collective land, of which 190 square meters were renovated and 110 square meters were expanded. Deng built a two-story building on the land, with a total construction area of ​​490 square meters. From 2011 to 2013, Deng built a 500-square-meter house next to the house without any approval procedures. In January 2016, the Violation Demolition Brigade issued a "Violation Notice" to Deng. Deng applied for administrative review. The result of the review was that the "Violation Notice" issued by the Violation Demolition Brigade was revoked. In March 2016, the Municipal Urban and Rural Planning Bureau served Deng with a "Notice of Hearing on Administrative Penalty" and "Advance Notice of Administrative Penalty", requiring Deng to demolish 500 square meters of illegal buildings on his own within 15 days. After Deng submitted a hearing application to the Municipal Urban and Rural Planning Bureau, the Municipal Urban and Rural Planning Bureau organized a hearing. The day after the hearing, the district government organized the demolition of Deng’s 490-square-meter two-story house and 500-square-meter building. Deng filed for administrative review. In May, the city government made a review decision, confirming that the district government's administrative act of demolishing the 490-square-meter house that Deng had legally built was illegal, and ordered compensation in accordance with the law; it upheld the district government's administrative action of demolishing the more than 500-square-meter house that Deng had illegally built. In June, Deng filed an administrative lawsuit, requesting to revoke the administrative reconsideration decision made by the municipal government, confirm that the district government's administrative act of forcibly demolishing his 990-square-meter legal house was illegal and compensate him for the economic losses of 3 million yuan caused by the illegal forced demolition.

Part Two: Case Analysis

1. Is it illegal for the district government to forcibly demolish Deng’s house? Regarding Deng’s request for compensation, the court of first instance ruled that the district government should handle it in accordance with local compensation and resettlement measures. Is it correct?

2. The Yingting Demolition Team believes that the house that Deng was forcibly demolished consists of two parts, including 490 square meters of houses built with approval and 500 square meters of houses built without approval. The district government demolished the approved 490-square-meter house without any basis, which is illegal. As for the 500-square-meter house that Deng built separately, it has neither land certification documents nor a construction project planning permit, and it is an illegal building. Even illegal buildings cannot be demolished without legal procedures. This is obviously an illegal demolition.

3. Deng also has a lawsuit request. Since the house involved in the case was originally within the scope of expropriation, the resettlement and compensation issues have been negotiated with the expropriating party. After the house involved in the case was forcibly demolished, the original compensation issue can be solved through compensation according to law. The court should directly conduct a substantive trial and make a judgment on the compensation issue. The district government illegally forcibly demolished Deng's 490 square meters of legally constructed house and 500 square meters of illegal construction, and should pay compensation in accordance with the law. Directly judge the administrative agency to provide administrative compensation for house and other personal and property losses.

4. Demolition compensation is a kind of "appropriate compensation" for losses caused by "legal acts". State liability for compensation arises based on "torts." Since infringement is an illegal act, state compensation also has a punitive effect. The Yingting Demolition Group believes that compensation for demolition can only be based on the market price "at the time when the decision to expropriate and demolish is announced", and that state compensation can restore the status quo of legal behavior, and compensation is based on the principle that it is conducive to the demolished people to receive full compensation. In practice, the amount of compensation for illegal demolition cases is often higher than the land acquisition compensation standard.

Part Three: Relevant Laws

1. According to the provisions of Article 40 of the Urban and Rural Planning Law, when constructing buildings, structures, roads, pipelines and other projects within city or town planning areas, the construction unit or individual shall apply for a construction project planning license from the urban and rural planning department of the city or county people's government or the town people's government determined by the people's government of the province, autonomous region or municipality directly under the Central Government.

2. Article 44 of the "Administrative Enforcement Law" stipulates: If illegal buildings, structures, facilities, etc. need to be forcibly demolished, the administrative agency shall make an announcement and set a time limit for the parties to demolish it on their own; if the parties do not apply for administrative reconsideration or file an administrative lawsuit within the statutory time limit and do not demolish it, the administrative agency may force the demolition in accordance with the law. In this case, the Urban and Rural Planning Bureau issued a "Notice of Administrative Punishment Hearing" and "Administrative Punishment Notification" in response to Deng's illegal construction. However, after the hearing, the house was demolished without making an administrative penalty decision. The procedures were illegal.

Yingting reminds you:

1. Whether it involves illegal construction or land acquisition and demolition, it is best not to demolish the house involved yourself. If you dismantle it yourself, it will be difficult to get compensation later.

2. If you encounter illegal forced demolition, the demolished person can file an administrative review within 60 days of receiving the expropriation decision, expropriation compensation decision and other specific administrative actions, and file an administrative lawsuit within 6 months. You must file a lawsuit to defend your rights within 6 months of knowing the date of forced demolition. Don’t miss the statute of limitations through petitions, reports, etc.