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According to the author,with the needs of social development and urban construction,urban renewal/old reconstruction has led to a large number of demolition.From slogans such as"Don't envy the mandarin ducks,don't envy the immortals,just envy the house,draw a circle,write in the middle of the circle,and be happy every day from now on",and"Tear apart the characters,spray,and run happily",it can be seen that some people expect demolition.Today,many people have made their fortune through demolition,and"demolition rights and interests"have become the inevitable property of some people who have been demolished,resulting in an increasing number of disputes,even at the expense of litigation.

The rights and interests of demolition generally include the relocation of houses and cash compensation,and the relocation of houses is often the main head of the rights and interests of demolition.In this article,I will discuss with you some typical issues related to the transfer/donation of rights and interests in the relocated house that I have encountered.

1、Can the rights and interests of relocated houses on collective land be transferred to members other than rural collective economic organizations?

The author believes that rural homestead and the houses built thereon shall not be transferred to organizations or individuals other than members of the village collective economic organization,but if the transfer is related to the rights and interests of the relocated houses on it,it is a different matter.

According to the relevant provisions of the Property Law of the People's Republic of China(hereinafter referred to as the"Property Law")and the Land Management Law of the People's Republic of China(hereinafter referred to as the"Land Management Law")on the ownership,use,and management of rural homesteads,rural homesteads belong to villagers'collective ownership,and are operated and managed by village collective economic organizations or villagers'committees;The right to use homestead is a right enjoyed by members of a collective economic organization.The transfer of homestead attached houses inevitably leads to the transfer of homestead use rights.The right to use homestead and homestead attached houses may not be transferred to organizations or individuals other than members of a village collective economic organization.However,if the homestead is demolished due to government planning reasons,the resulting rights and interests in the relocated house can in principle be transferred externally,except for the replacement house included in the rights and interests in the relocated house or the specific location of the land on which the building index is located that is within the rural collective economic organization.

Reference case:In the case of contract dispute between Shen Sumin and Hou Yongzheng([2017]Yu 03 Min Zhong No.805),Luoyang Intermediate People's Court held that...from the content of the"demolition compensation and resettlement agreement",the compensation and resettlement is for houses,not homesteads,and the demolition compensation is for houses,which is the distribution of benefits from demolition compensation,"Rather than disposing of the homestead...but the agreement on building a house in connection with the Housing Joint Construction Agreement,which violates relevant laws and regulations,is invalid;";"The agreement on the rights and interests of housing demolition compensation and the distribution of benefits in the Joint Housing Construction Agreement is a true expression of the intention of both parties,and does not harm the interests of the collective and third parties.It is a disposition of the rights and interests of the relevant housing and the benefits of demolition compensation by the Shen Sumin family,and should be a valid agreement..."

Li Hong,the Supreme People's Court,and the People's Government of Zhongyuan District,Zhengzhou City,held in the Administrative Ruling on Reexamination,Review,and Trial Supervision([2017]No.6998 of the Supreme Law)that...the"Housing and Homestead Transfer Agreement"specifically stipulates that in the event of national or government expropriation,the transferor must unconditionally assist the transferee in collecting all compensation and housing,etc.,which means that both parties have foreseen the expropriation of the involved housing when signing the agreement The possibility of expropriation is also a free disposition of the economic interests involved in the demolition and resettlement by both parties to the agreement.Although the transfer agreement signed by both parties has been confirmed invalid through judicial procedures,Li Hong has already delivered the house and homestead for many years and has obtained consideration.Therefore,the court does not support Li Hong's request to confirm the invalidity of the"Relocation Compensation and Resettlement Agreement"signed between the Central Plains District Government and Zhang Kunfa,and to provide installation compensation for it,which violates the principles of good faith and reasonableness and does not comply with legal provisions.

2、Since the rights and interests of the relocated house can be transferred,how can the transferee calculate the rights and interests of the relocated house?

The author believes that when transferring the rights and interests of the relocated house,as long as the transferee and the demolisher sign a resettlement compensation agreement,in principle,it can be recognized that they have obtained the rights and interests of the relocated house.

The reason why this issue is mentioned is that a large number of disputes over the rights and interests of the relocated house occur during the transfer/donation process,and whether the transferee has obtained the rights and interests of the relocated house is often the focus of the above disputes.

Currently,courts around the country have different opinions on how to calculate the completion of the transfer of the rights and interests of the relocated house.Some courts believe that the compensation rights and interests for housing demolition and resettlement are not existing real houses,belonging to property rights in the nature of creditor's rights,not property rights such as house ownership that require legal registration procedures,and obtaining such property rights does not require public notice or registration procedures.Therefore,after the transferee signs a demolition compensation and resettlement agreement in the identity of the relocated person,the transferee will obtain the relevant rights and interests for the relocated house;Another court held that the rights and interests of the relocated house obtained according to the demolition compensation and resettlement agreement are not creditor's rights,but a real right expectation right generated based on the future delivery and use of the real estate,which is realizable.The relocated person must also sign a house selection agreement or even register the property rights before they can be recognized as obtaining the rights and interests of the relocated house;If the relocation house has not been registered in the transferee's name,the rights and interests in the relocation house have not been transferred.

In this regard,the author tends to agree with the first opinion:as long as the transferee signs a resettlement compensation agreement in the identity of the relocated person,in principle,it can be recognized that they have obtained the rights and interests of the relocated house.There are three reasons:First,the transfer of the rights and interests of the relocated house is not the transfer of the original house,but the transfer of the compensation benefits from the demolition after the original house is demolished and lost,and the original property rights no longer exist.Therefore,its essence should be the transfer of creditor's rights,which is not the same as the transfer of property rights;2、From the perspective of operational practice,when the transferee obtains the house to be relocated,it is not from the original property owner to register with the transferee,but from the original property owner to agree that the transferee is the person to be relocated,and the transferee directly signs the demolition and resettlement compensation agreement and the house selection agreement with the government or the developer,thereby obtaining the house to be relocated,which is different from the transfer of ownership of the house;3、From the perspective of maintaining the stability of social transactions,it is often a relatively long process from the original property owner agreeing to transfer the rights and interests of the relocated house,the transferee signing a relocation compensation agreement,to the transferee obtaining the relocated house,until it is registered in the transferee's name.If the property registration is used as the standard for obtaining the rights and interests of the relocated house,it often leads to"long dreams"due to factors such as changes in house prices,This has led to an unstable state of the original agreement and an unwarranted increase in social disputes.

Reference case:(1)Cases where it is believed that obtaining demolition benefits does not require registration

In the retrial civil ruling on the ownership confirmation dispute between Zhang Wencai and Dong Huayan([2014]Su Shen Er Min Shen Zi No.0643),the Jiangsu Provincial High People's Court held that...because the property rights granted in this case are compensation rights for housing demolition and resettlement,which are creditor's rights,not property rights such as housing ownership that require legal registration procedures,Dong Huayan has obtained relevant property rights after the agreement is performed.Zhang Wencai Fang Yonglan has no right to revoke the gift.Therefore,Zhang Wencai and Fang Yonglan have no legal basis for claiming that the gift has been revoked.

In addition,in the case of Yuan Lingen and Hu Huixiang's gift contract dispute,([2018]Gan 09 Min Zhong No.2008),the Yichun Intermediate People's Court held that...Zhang Yan chose to exchange property rights(apartment building placement),that is,to choose an apartment with an area of 80㎡by making up the house payment.Therefore,Yuan Lingen and Hu Huixiang donated compensation and resettlement benefits to Zhang Yan through the compensation and resettlement agreement,rather than existing real estate.This interest has been determined and delivered without the need for registration of transfer of ownership through a legal and effective compensation and resettlement agreement.Similar views are also reflected in the judgments of the Xinxiang Intermediate People's Court in the case of Wang Wenying and Chang Hong,Wang Yinghao's gift contract dispute([2015]Xinzhongmin Wuzhong Zi No.302),and the Taizhou Intermediate People's Court in the case of Jin,Li Yang,and Xiao Genqin's gift contract dispute([2017]Su 12 Minzhong 1573).

(2)Cases where registration is necessary to obtain demolition benefits

In the case of Meng Xiaofen's Dispute over the Gift Contract with Ni Jianping([2015]Xing Min Er Zhong Zi No.352),the Xingtai Intermediate People's Court held that...Ni Jianping,based on the gift certificate issued by his mother Meng Xiaofen,has signed a housing demolition compensation and repurchase and resettlement agreement with Xingtai Jingxu Real Estate Development Co.,Ltd.,but the donated property has not been constructed and has not been registered for confirmation,Ni Jianping did not actually acquire the ownership of the disputed property,and the property donated by his mother Meng Xiaofen did not have any transfer of rights.Meng Xiaofen,as the owner of the demolished house and the owner of the house demolition compensation and repurchase resettlement rights,can revoke the gift before the transfer of rights to the gift property.

In the case of the gift contract dispute between Yu Zhanghe and Bai Cuihe([2019]Jin 04 Min Zhong No.117),the Changzhi Intermediate People's Court held that...according to the demolition compensation and resettlement agreement,the two persons obtained the property rights of the house at Room 02,Floor 15,Unit 1,Building 2,Heping No.1 Community.This right is not the ordinary creditor's right claimed by the appellant Yu Zhanghe,but a real right expectation right generated based on the future delivery and use of the real estate,It is realizable.The appellee Bai Cuihe and her husband Yu Xuezeng agreed to change the name of the property owner of the compensation and resettlement house involved in the case from Yu Xuezeng to Yu Zhanghe,which is an act of property donation.According to Article 186 of the Contract Law of the People's Republic of China,"The donor may revoke the gift before the transfer of the rights to the gift property."As the compensation and resettlement housing involved in the case has not been registered for ownership,it should be considered that the rights to the gift property have not been transferred.Therefore,the court of first instance did not improperly support the appeal of the respondent Bai Cuihe for revocation of the gift.

3、If one spouse transfers the rights and interests of the house to another person without their spouse's consent,does the spouse's claim for revocation necessarily receive support?

The author believes that according to the relevant provisions of the"Contract Law",before the transferee obtains the rights and interests of the house to be relocated,there should be no doubt that the relocated person cancels its previous donation to the transferee's rights and interests of the house to be relocated."There is a doubt that when the rights and interests of the house to be moved back are a type of common property of a husband and wife,if one party disposes of or transfers to another person without the consent of the other party,the other party can,in principle,apply to the court for cancellation,but should provide evidence to prove that they did not know or that there was malicious intent on the part of the outsider,otherwise the court may not support them.".

According to Article 17 of the Marriage Law of the People's Republic of China and Article 17 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Marriage Law of the People's Republic of China(I),if one spouse disposes of jointly owned property without authorization,if the amount is small,it shall have legal effect according to the law,as both spouses have the right to dispose of the common property;"If the amount is relatively large and one spouse disposes of it without authorization,the other spouse may apply to the court to revoke the disposition and confirm that the disposition is invalid.".

However,in judicial practice,if one spouse arbitrarily disposes of the rights and interests of the moving house that should belong to the joint property of the husband and wife,and the other party claims cancellation,evidence should be provided that they are not aware of it or have raised objections or that the other party has malicious collusion with outsiders.Otherwise,the court may adopt a presumption to determine that the party claiming cancellation is aware of it,thereby rejecting its lawsuit request.At the same time,if the transfer of the rights and interests of the relocated house has been completed and the transferee does not have malicious intent,the above cancellation application may also not be supported.

Reference case:In the case of Xu Shu's dispute over the confirmation of contract validity with Li Meiwan and Zhang Xiangtan([2016]Yue 01 Min Zhong No.5629),The Guangzhou Intermediate People's Court held that...the focus of the dispute in this case was the issue of whether the two agreements signed by Xu Shu in the original trial,which claimed that Li Meiwan transferred the 52 square meters of the husband and wife's common property,namely,the relocation and resettlement house,to Zhang Xiangtan without their consent,should be invalid or not supported.Xu Shu was aware of this and had not raised any objections for a period of up to 30 years.The right to use the homestead in question has been registered in the name of Li Meiwan...In order to compensate for the demolition of the original homestead,Li Meiwan also signed a compensation agreement with Yangji Village in his own name,and Xu Shu did not raise any objection to this;While Li Meiwan also signed an agreement with Zhang Xiangtan to resolve the issue of compensation for the relocation of some of the homestead originally used by Zhang Xiangtan,and after that,all the houses were delivered for demolition.Xu Shu claimed that the agreement and agreement signed by Li Meiwan and Zhang Xiangtan were invalid five years later based on his ignorance,which was obviously unreasonable.

In the case of the ownership confirmation dispute between Liang Ruiping and Liang Xiyao and Wu Jinnian([2016]Yue 06 Min Zhong No.392),the Foshan Intermediate People's Court held that...Liang Xiyao and Wu Jinnian's assertion that the agreement involved was invalid lacked factual and legal basis.First,the house involved in the case is registered in the name of Liang Xiyao,and formally,Liang Xiyao has the right to dispose of the ownership of the house involved and the relevant demolition rights and interests.Secondly,even though the house and related demolition rights and interests in the case belong to the joint property of Liang Xiyao and Wu Jinnian,the facts of the case indicate that donating the related demolition rights and interests in the house in the case to Liang Ruiping is a common intention of Wu Jinnian and Liang Xiyao.The reasons are as follows:First,the demolition compensation agreements for several houses,including the houses involved,signed by Liang Xiyao and the Urban and Rural Housing Office of Chencun Town in 2012 were signed in their personal names,Wu Jinnian raised no objections.Secondly,after the signing of the agreement involved in the case,several houses under Liang Xiyao's name,including the houses involved in the case,were demolished at the same time.Apart from the houses involved in the case,other houses also entered the demolition process and received demolition compensation.The relevant demolition documents and demolition compensation were signed and received by Liang Xiyao,Wu Jinnian,as the co owner of the house involved in the case,should know that Liang Ruiping received the demolition compensation for the house involved and participated in the resettlement land allocation lottery.However,Wu Jinnian has not raised any objection to this for several years after Liang Ruiping received the demolition compensation for the house involved and participated in the resettlement land allocation lottery.Both of these points indicate that Wu Jinnian has always entrusted matters related to house demolition to Liang Xiyao,and Wu Jinnian has indicated by his behavior that he agreed to sign an agreement between Liang Xiyao and Liang Ruiping to grant the relevant demolition rights and interests of the house involved...based on the registration of the house involved in the case under the name of Liang Xiyao During the housing demolition process,Liang Xiyao has been handling demolition affairs in his own name...Liang Ruiping has reason to believe that the donation of demolition rights and interests related to the housing involved by Liang Xiyao is a joint intention of the spouses of Liang Xiyao and Wu Jinnian.Therefore,even if Liang Xiyao has no right to dispose of the demolition rights and interests related to the housing involved by Wu Jinnian,Liang Xiyao and Wu Jinnian cannot use this to counter the goodwill of Liang Ruiping.

4、"If the relocated person donated the rights and interests of the relocated house to others before their death,can the heir of the relocated person revoke the gift?"?

The author believes that,unless there are legal reasons(such as the recipient's existence in the circumstances specified in Article 192 of the"Contract Law of the People's Republic of China"),based on the principle of good faith,the heir of the relocated person cannot revoke the donation of the relocated person's rights and interests in the relocated house.

As a kind of property rights,the heirs of the relocated person naturally enjoy the inheritance rights to the rights of the relocated house when the relocated person dies.If the relocated person donated the rights and interests of the relocated house to another person before their death,can their heirs inherit the revocation right and claim to revoke the donation of the rights and interests of the relocated house?

The above cancellation mainly involves the arbitrary cancellation right in the Contract Law.On the one hand,the right of arbitrary revocation is the right of formation,which applies during the exclusion period.If the donor dies,the right disappears;On the other hand,the donor's arbitrary revocation right also does not fall within the scope of inheritable property stipulated in the Inheritance Law.Therefore,the arbitrary revocation right in a gift contract should be a right granted by law exclusively to the donor himself,and this right has a certain specificity.

From the perspective of maintaining social transaction stability,if the revocation right of the rights and interests of the relocated house can be inherited by its heirs,then due to the gratuitous nature of the gift contract,in most cases,the heirs will not hesitate to use the right for their own interests,and the interests of the recipient cannot be protected,often against the wishes of the donor.Therefore,in terms of the legal principle of good faith,the heir of the relocated person cannot revoke the gift of the relocated person's rights and interests to the relocated house.

Reference case:In the case of a dispute over the gift contract between Ji Changjiu and Ji Changfeng([2014]JGMSZ No.1356),the Tianjin Higher People's Court held that...the retrial applicant Ji Changjiu,in accordance with Article 192,paragraphs 1 and 2,and Article 195 of the Contract Law of the People's Republic of China,claimed to revoke the gift contract in the name of Liu Yuting and in the capacity of Liu Yuting's heir.Article 192 of the Contract Law of the People's Republic of China stipulates:"The donor may revoke the gift in any of the following circumstances,"which clearly states that the person exercising the right to revoke the gift contract should be the donor,and Ji Jiujiu is not the donor of the gift contract,so the provisions of this article are not applicable.Under the circumstances where Liu Yuting and Ji Deren have successively passed away as the donors,Ji Changjiu,as the heirs,requested to continue to claim the revocation of the gift contract in the name of his mother Liu Yuting,which is inconsistent with the law.Therefore,the court of first instance ruled that Ji Changjiu's lawsuit was dismissed without any irregularity.

In the case of inheritance dispute between Mr.Li and Mr.Zhou([2018]Yue 01 Min Zhong No.18431),the Guangzhou Intermediate People's Court held that...the failure to complete the registration procedures for the change of property rights in the property donation part in question did not affect the validity of the donation contract...As the donor and a party to the contract,Mr.Cai did not express his intention to revoke the donated property during his lifetime,and other heirs did not have legal reasons to appear,Has no right to request cancellation of the gift contract.Moreover,the absence of the subject of the contract is not a legal requirement that results in the termination of the rights and obligations agreed upon in the contract.Therefore,after the death of Li Mou 2,Zhou Mou,as his wife,has the right to request Cai Mou to continue to perform the gift contract.After Cai Mou's death,his heirs are also obligated to continue to perform the gift contract.

Li Kejun Partner of Beijing Gaopeng(Shenzhen)Law Firm

Introduction:Since the beginning of 2004,he has become a practicing lawyer and has rich legal practice experience,specializing in construction engineering and real estate,corporate mergers and acquisitions,cultural creativity,and other professional legal fields.He has been or is working for Shenzhen Qianhai Administration,China Resources Group,McDonald's China Headquarters,Bank of China Hong Kong,Beijing Construction Engineering,Guangshen Railway,Liantai Group,Shenzhen Zhongzhou Group,Shenzhen Wealth Group,Shenzhen Tianli Group,Shenzhen Golden Guanghua Group Haijixing,Hengming Real Estate Group,Seeing Culture,Fenghuo Creativity,etc.provide professional legal services.

Liu Ren:Assistant Lawyer of Beijing Gaopeng(Shenzhen)Law Firm

(This article is translated by software translator for reference only.)