Legal information

Article introduction: What are the illegal buildings in rural areas? If these four conditions are violated, the illegal construction will be demolished and you can receive state compensation!

1. How to identify illegal buildings in rural areas?

Paragraph 3 of Article 62 of the "Land Management Law" stipulates that the residential land used by rural villagers shall be reviewed by the township (town) people's government and approved by the county-level people's government; if it involves the occupation of agricultural land, the approval procedures shall be handled in accordance with the provisions of Article 44 of this law. Ying Ting believes that whether the property rights of a house are legal or not can generally be confirmed as legal and valid only after the people's government with jurisdiction has registered and issued a certificate. Simply relying on the certificate issued by the village committee is not enough to prove that the house involved in the case is a legal and approved construction. If the parties concerned cannot provide property rights registration certificates such as the "Collective Land Use Certificate" approved by the local government, they shall bear the legal consequences of being unable to provide evidence.

2. Under what circumstances can illegal buildings be demolished?

(1) Article 35 of the "Administrative Enforcement Law" stipulates that before making a decision on enforcement, the administrative agency shall urge the parties to perform their obligations in advance, and the reminder shall be made in writing.

(2) According to Article 36 of the Administrative Enforcement Law, the parties concerned have the right to make statements and defense after receiving the reminder. Administrative agencies should fully listen to the opinions of the parties, and record and review the facts, reasons and evidence submitted by the parties. If the facts, reasons or evidence presented by the parties are established, the administrative agency shall adopt them.

(3) Article 37 of the "Administrative Enforcement Law" stipulates that if the party concerned fails to perform the administrative decision within the time limit after being urged, and there is no justifiable reason, the administrative agency maymakeEnforce decisions.

(4) Article 44 of the "Administrative Enforcement Law" stipulates that if illegal buildings, structures, facilities, etc. need to be forcibly demolished, the administrative agency shall make an announcement and the parties concerned shall demolish it on their own within a time limit. If the party concerned does not apply for administrative reconsideration or file an administrative lawsuit within the statutory time limit, and does not demolish it, the administrative agency may forcibly demolish it in accordance with the law.

3. What are the situations in which compensation can be obtained for forced demolition of illegal construction?

According to Article 2, Paragraph 1 of the "State Compensation Law", if state agencies and state agency staff exercise their powers and infringe upon the legitimate rights and interests of citizens, legal persons and other organizations as stipulated in this law, causing damage, the victim has the right to obtain state compensation in accordance with this law. If the party concerned cannot provide evidence to prove the legality of the building it built, then its claim that the relevant building falls within the scope of compensation stipulated in the "State Compensation Law" lacks factual and legal basis. The building materials that can be reused should be legal property and should be compensated according to law.

4. What procedures must be followed before demolishing illegal buildings?

(1) According to Article 35 of the "Administrative Enforcement Law of the People's Republic of China", before the administrative agency makes a decision on enforcement, it should urge the parties to perform their obligations in advance, and the reminder should be made in writing. The Yingting demolition team learned that Article 36 stipulates that the parties concerned have the right to make statements and defend themselves after receiving the reminder. Administrative agencies should fully listen to the opinions of the parties, and record and review the facts, reasons and evidence submitted by the parties. If the facts, reasons or evidence presented by the parties are established, the administrative agency shall adopt them. Article 37 stipulates that if the party concerned fails to fulfill the administrative decision within the time limit after being urged, and there is no justifiable reason, the administrative agency maymakeEnforce decisions. Article 44 stipulates that if illegal buildings, structures, facilities, etc. need to be forcibly demolished, the administrative agency shall make an announcement and the parties concerned shall demolish them on their own within a time limit. If the party concerned does not apply for administrative reconsideration or file an administrative lawsuit within the statutory time limit, and does not demolish it, the administrative agency may forcibly demolish it in accordance with the law.

(2) Regarding whether the house involved in the case is an illegal construction. Paragraph 3 of Article 62 of the "Land Management Law of the People's Republic of China" stipulates that residential land for rural villagers shall be reviewed by the township (town) people's government and approved by the county-level people's government; if it involves the occupation of agricultural land, the approval procedures shall be handled in accordance with the provisions of Article 44 of this law.

(3) According to Article 2, Paragraph 1 of the "State Compensation Law of the People's Republic of China", if state agencies and state agency staff exercise their powers and infringe upon the legitimate rights and interests of citizens, legal persons and other organizations as stipulated in this law, causing damage, the victim has the right to obtain state compensation in accordance with this law. In other words, the prerequisite for obtaining state compensation is that the legitimate rights and interests of citizens, legal persons and other organizations have been infringed upon and caused losses.

(4) Paragraph 2 of Article 38 of the "Administrative Litigation Law of the People's Republic of China" stipulates that in cases of administrative compensation and compensation, the plaintiff shall provide evidence of the damage caused by the administrative act. If the plaintiff is unable to provide evidence due to the defendant's fault, the defendant shall bear the burden of providing evidence. Article 54 of the "Regulations of the Supreme People's Court on Several Issues Concerning Evidence in Administrative Litigation" stipulates that the court shall review the evidence that has been cross-examined at trial and the evidence that does not require cross-examination one by one and comprehensively review all evidence, follow the professional ethics of judges, use logical reasoning and life experience, conduct comprehensive, objective and fair analysis and judgment, determine the probative relationship between evidence materials and case facts, exclude evidence materials that are not relevant, and accurately determine the facts of the case.

Yingting reminds you:

(1) If your house is identified as an illegal construction, please first find out whether your house is an illegal construction. After encountering forced demolition, or within 60 days of receiving specific administrative actions such as expropriation decisions and expropriation compensation decisions, administrative reconsideration is filed, and administrative litigation is filed within 6 months. Don’t miss the statute of limitations through petitions, reports, etc.

(2) For legal houses that have been forcibly demolished, the statute of limitations is 6 months. After being identified as an illegal building, if you are dissatisfied with the decision to order demolition within a time limit, you must file a lawsuit with the People's Court within 15 days from the date of receipt of the demolition decision.

(3) Before the demolition of illegal construction is carried out, a final announcement still needs to be made. If the person being demolished files an administrative review or administrative lawsuit, the house involved in the case cannot be forcibly demolished before the judicial review is completed.

(4) 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.