Legal information

Article introduction: Ying Ting often receives legal consultation on "illegal construction". "Illegal construction" often appears around us and has become a hot word in society. Whether illegal construction should be demolished is an issue that should be fully considered. When administrative agencies exercise their authority to demolish illegal buildings and other matters involving citizens' major property interests, they should judge and handle problems reasonably and lawfully on the basis of ascertaining the facts.

First, the principle of “non-retroactivity of laws”

The basic principle that it is impossible to use a new law to regulate previous behavior is widely recognized. Since the Urban and Rural Planning Law was implemented in 2008, before 2008, the Urban Planning Law that was implemented in 1990 was applicable. In practice, many old houses were built before 1990. It would be unreasonable to determine that the old houses are illegal buildings based on the Urban and Rural Planning Law. If it is an old house in a rural area, even if it is an unlicensed house, it cannot be treated as an illegal building.

Second, the principle of trust protection

Commercial housing supported by policies, or key construction projects promoted by the government to attract investment, cannot be deemed illegal and demolished.

Third, demolition is not the only way to investigate and deal with illegal buildings.

1. As long as corrective measures can be taken to eliminate the impact of illegal construction, fines should be imposed according to the legal amount, rather than being ordered to be demolished within a time limit or directly confiscated. The legal basis is as follows. The one-size-fits-all approach of “demolishing illegal structures” runs counter to legal principles.

2. Article 64 of the "Urban and Rural Planning Law" stipulates that if a construction project planning license is not obtained or construction is not carried out in accordance with the provisions of the construction project planning license, the urban and rural planning department of the local people's government at or above the county level shall order the construction to stop; if corrective measures can be taken to eliminate the impact on the implementation of the plan, corrections shall be made within a time limit and a fine of not less than 5% but not more than 10% of the construction project cost shall be imposed. This shows that,

Fourth, some illegal constructions exist due to practical needs, and there is no need for administrative agencies to eliminate them all.

1. Some illegal constructions exist because people do have needs for use. If it is dismantled, it will cause conflicts, so be careful in handling it. The legal basis is as follows.

2. The "Implementation Opinions on Several Issues Concerning Strengthening the Management of Illegal Construction" stipulates that administrative agencies will not investigate and deal with illegal construction that actually exists and has real needs for use.

(1) Integrated car washing equipment set up within gas stations, parking lots and other business areas;

(2) Facilities such as air-conditioning racks, awnings, anti-theft windows, single-layer solar equipment, etc. on the exterior walls of residential buildings;

(3) Internal decoration of the building (excluding damage or unauthorized changes to the load-bearing structure and main structure of the building);

(4) Sound insulation renovation facilities for smokeless stoves, outdoor flues, and central air-conditioning outdoor units;

(5) Pet sheds, pigeonhouses, fences and other facilities set up by the owner within the scope of exclusive use rights;

(6) Road traffic management facilities such as simple communication antennas, vehicle entry and exit gates, traffic lights, guardrails, electronic police; various signs, markings, boundary posts, monitoring and surveillance facilities;

(7) Facade decoration of buildings and structures other than facade decoration of large and medium-sized or protected buildings;

(8) Simple public bicycle booths, bus booths, gate posts, etc.

(9) Renovation of back streets and alleys, courtyard improvement projects and comprehensive improvement within the community (including flat to slope), rainwater and sewage diversion, and pipe network renovation projects determined by the Municipal Construction Committee, dilapidated house improvement and roof renovation projects determined by the Municipal Housing Security and Real Estate Bureau, and market improvement and renovation projects determined by the Municipal Commerce Bureau are not included in the identification and investigation of illegal construction.

Yingting reminds you:

1. If your house is identified as an illegal construction, please first find out whether your house is an illegal construction. If you have any questions, please consult a professional land acquisition and demolition lawyer for professional legal advice. 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.