Legal information

Article introduction: After signing the transition agreement, the house can be demolished by force, is that true?

1. Basic facts of the case

The demolition party only signed a transitional agreement with Wen, and Wen received the compensation. Before applying for court enforcement, they sent someone to demolish Wen's house.

2. Viewpoints of both sides

1. The perspective of the demolishing party: 1. According to the "Demolition Transition Agreement" signed between a certain district government and the demolished person, after receiving the demolition transition fee and incentive money and delivering the house to a certain government, the ownership of the house was lost. Wen did not have the qualifications to be the plaintiff when he filed a lawsuit on the grounds that the house was demolished; 2. The "Demolition Transition Agreement" involved in the case has clearly stipulated the resettlement compensation standards, procedures and channels for Wen, and there is no situation where resettlement compensation has not been carried out.

2. Court’s view: In this case, a certain district government neither made a decision to hand over the land in accordance with the law nor applied to the People’s Court for enforcement in accordance with the law, and directly carried out forced demolition of the house involved without completing the resettlement and compensation work, which violated the law. The original court ruled that the demolition was illegal and was not inappropriate.

3. Legal perspective

1. Whether it is the expropriation of collective land or the expropriation of houses on state-owned land, the administrative agency shall apply to the People's Court for enforcement after completing the compensation and resettlement work. The administrative agency does not have the power to directly forcibly demolish the expropriated houses before obtaining the court's permission for enforcement ruling. Yingting learned that even if the expropriated person has received resettlement compensation in accordance with the law or refuses to accept resettlement compensation without justifiable reasons, the expropriation agency must apply to the People's Court for compulsory execution in accordance with legal procedures if it wants to implement forced relocation and demolition.

2. As a special form of property rights change, government expropriation directly leads to changes in property rights due to the expropriation decision. However, special attention should be paid to the fact that before the expropriation and compensation work is completed, the legal rights and interests of the expropriated people in the expropriated houses or land should still be protected. The expropriated people cannot be enforced before they receive resettlement compensation. That is to say, the expropriation of land and houses should not only follow the principle of "no expropriation without compensation", but also the principle of "compensation first, demolition (execution) later". Otherwise, the expropriated person has the right to refuse to relocate, and the expropriation authority cannot enforce it. The fundamental purpose of clarifying the principle of “compensation first, demolition (implementation) later” is to ensure the basic living or production and operation conditions of the expropriated people before receiving resettlement compensation after the land or houses are expropriated.

3. The Yingting Demolition Group believes that there are usually two situations in which the expropriated people receive resettlement compensation: first, the expropriation authority and the expropriated person reach an agreement on resettlement compensation and sign a resettlement compensation agreement, and the expropriation authority begins to actively perform relevant obligations in accordance with the resettlement compensation agreement; second, if an agreement cannot be reached with the expropriated person, the expropriation authority makes a compensation decision or compensation act in accordance with the law according to the land acquisition compensation and resettlement plan, that is, the resettlement location and area have been specified, and the compensation has been paid or stored in a special account. In practice, after the expropriation authority and the expropriated person reach a resettlement compensation agreement, the expropriated person takes the initiative to hand over the land or houses to the expropriation authority. The demolition behavior taken by the expropriation authority accordingly does not fall into the category of forced demolition. The legality and legitimacy of the demolition behavior are based on the voluntary disposition of the expropriated person after recognizing the resettlement compensation.

4. The transitional clauses of house expropriation compensation are the specific arrangements of the two parties on the transition method, transition period and transition costs after the house is demolished and before actual resettlement. It is different from the main clauses such as compensation method, compensation amount, resettlement location and area, which are the main contents of expropriation compensation. The transitional clauses cannot fundamentally protect the resettlement compensation rights and interests of the expropriated people. A transitional agreement with only transitional clauses cannot replace the overall settlement. The content of the transitional agreement that the house will be demolished by the expropriation agency must be combined with the resettlement compensation agreement that clearly stipulates the main terms of expropriation compensation before it can be used as the legal basis for the expropriation agency to demolish the expropriated house. A transitional agreement signed only for transition issues, even if the agreement stipulates that the house will be demolished, cannot be used as the legal basis for the demolition of the expropriated house before the expropriation agency completes the resettlement and compensation work.

5. Whether it is the expropriation of collective land or the expropriation of houses on state-owned land, the administrative agency shall apply to the People's Court for compulsory execution after completing the compensation and resettlement work. The administrative agency does not have the power to directly forcibly demolish the expropriated houses before obtaining the court's permission for compulsory execution. Even if the expropriated person has received resettlement compensation in accordance with the law or refuses to accept resettlement compensation without justifiable reasons, the expropriation agency must apply to the People's Court for compulsory execution in accordance with legal procedures if it wants to implement forced relocation and demolition.

Yingting reminds you:

When faced with demolition, some demolished people took drastic measures to resist demolition and were even punished by law for certain criminal charges. This is unwise! When facing demolition, you should stay awake and avoid physical confrontation with the demolition personnel, and do not make verbal attacks. Protect the personal safety of yourself and your family. You can symbolically express your disagreement with the forced demolition and make audio and video recordings as evidence. If you have objections to resettlement compensation, 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. File a lawsuit to defend your rights within 6 months from the date the house was demolished. You can consult a land acquisition and demolition lawyer for solutions, or hire a demolition lawyer to negotiate with the government to strive for satisfactory compensation.