[Case Summary]This case involves a dispute over resettlement and compensation in the urban village transformation. Zhang **'s father, Zhang ***, was a member of the collective economic organization of Shuguang Village, Qianjin Subdistrict, XX District, Jinan City. The village had a registered residential land area of 219.80 square meters. After Zhang **'s father died in 2003, the house was lost. In April 2024, Shuguang Village was included in the urban village transformation. The Qianjin Subdistrict Office refused to resettle Zhang ** on the grounds that she had neither residential land nor a residential house. Zhang ** hired Beijing Henglu Law Firm to handle the case.Zhang WeiThe lawyer filed a lawsuit with the court. The court of first instance ordered the street office to provide compensation within 60 days. The court of second instance dismissed the appeal and upheld the original judgment. Both courts ruled in favor of the plaintiff, successfully protecting the villagers' rights to resettlement and compensation. The core disputes were the determination of the inheritance rights to residential plots and the application of the non-resettlement clause.

I. Review of the case

Many villagers feel anxious when facing demolition.How can I request resettlement if the residential land is registered under my father's name?、How to protect your rights if your house is occupied by others?In this case, Zhang ** and her father, Zhang ***, are both members of the collective economic organization of Shuguang Village, Qianjin Subdistrict, XX District, Jinan City. Zhang ** owned a residential land use right in the village, which was registered with a house on it. The registered area and the identified area of the land use right were both 219.80 square meters. In 2003, Zhang ** passed away. After that, the original house on the residential land use right in question was lost (Zhang ** claimed that it was illegally occupied and demolished by a villager named Wang ** in the same village, and the subdistrict office failed to clarify the reason). Later, Wang ** built a house on the residential land use right in question.

On April 22, 2024, Qianjin Subdistrict Office issued a demolition notice for the urban village transformation project, and Shuguang Village was included in the demolition scope. On April 30, the headquarters publicized the "Shuguang Village Homestead Area Identification Form", which recorded that the registered area and identified area of Zhang *1's homestead were both 219.80 square meters; when it was publicized again on May 4, Zhang *1's homestead information was not recorded. The subdistrict office acknowledged that after Zhang *1's death, the relevant homestead had not yet undergone the recovery procedure, and Zhang * * had no other homestead use rights in the village except the relevant homestead.

After that, the headquarters issued a "Reply Letter" to Zhang **, stating that "we did not find any residential houses in Shuguang Village belonging to you, nor did we find any legal land use rights certificates for residential houses under your name". According to the regulation in the compensation and resettlement plan that "members of the collective economic organizations in the village who have neither land use rights for residential houses nor residential houses in the village shall not be resettled", it was decided that Zhang ** would not be resettled. Zhang ** disagreed with the decision and entrusted Beijing Henglu Law Firm to handle the case for him/her.Zhang WeiThe lawyer filed a lawsuit with the court of first instance, requesting the revocation of the response involved in the case and ordering Qianjin Sub-district Office to perform its resettlement and compensation duties in accordance with the law.

II. The focus of the case

  • Under the circumstances that the house on Zhang * *'s father's homestead has been lost and the homestead is registered under his father's name and occupied by others, can Zhang * * obtain the right to use the homestead involved in the case based on inheritance and thus enjoy the qualification for resettlement?
  • Can the clause in the compensation and resettlement plan that "those who have neither residential land nor residential houses will not be resettled" be applied to members of the village collective economic organizations who have legal rights to residential land through inheritance?
  • The subdistrict office refused to provide housing relocation on the grounds of the loss of the house and the lack of an inheritance basis. Did it comply with the statutory procedures for recovering the residential land according to law, and was its decision to refuse housing relocation lacking legal basis?

III. The professional intervention of Hengluo Law Firm

Both parties' arguments: The plaintiff, Zhang **, claimed that she is a member of the collective economic organization of Shuguang Village and has no other residential plots in the village. Due to inheritance, she enjoys legal rights to the residential plot in question and requests to revoke the reply of not providing resettlement and order the defendant to fulfill its duty of resettlement and compensation; the defendant, Qianjin Street Office, argued that according to the demolition compensation and resettlement plan, members of the collective economic organization of the village who have neither residential plots nor residential houses in the village will not be resettled. The original house on the residential plot in question has been lost, and Zhang ** has no house, which meets the conditions for not providing resettlement.

The legal opinion of Hengluo Law Firm is as follows:

First, establish the basic facts. Zhang ** is a member of the collective economic organization of Shuguang Village and has no other right to use residential land in the village. There is no dispute between the two parties, which is an important prerequisite for determining whether he is eligible for resettlement.

Secondly, clarify the state of the estate at the beginning of the inheritance. The inheritance begins when the decedent dies. In 2003, when Zhang *1 died, the original house on the disputed residential land had not been lost and belonged to the estate. As a legal heir, unless there is evidence proving that she explicitly waived her right of inheritance, she should be deemed to have accepted the inheritance and could legally use the disputed residential land. The appellant denied the basis of the inheritance on the grounds that the house was later lost, confusing the state of the estate at the beginning of the inheritance with the subsequent fact of the house's loss.

Thirdly, it points out the lack of a procedure for the recovery of the homestead. To date, the procedure for the recovery of the homestead in question has not been implemented, and there is no evidence to prove that the village collective has applied for and obtained approval to cancel the registration and recover the land in accordance with the law; the regulations on the handling of idle homesteads cited by the appellant apply on the premise that the homestead is confirmed, cancelled and recovered in accordance with legal procedures. When the procedural facts are lacking and the cause of the loss of the house is unclear, it cannot be directly inferred that Zhang ** has lost the right to the homestead.

Fourth, accurately apply the normative basis. According to Article 6 of Document No. 178 [2011] of the Ministry of Land and Resources, if a member of the peasant collective who already owns a residential land base inherits a house that occupies a rural residential land base, the house can be registered and issued a certificate according to the regulations, and the legal inheritor shall be noted; to put things in perspective, Zhang ** can obtain the use rights to the residential land base in question according to the inheritance rules, since he/she does not own any other residential land base in the village. Zhang ** does not meet the situation of "neither having a residential land base nor a residential house" in the compensation plan, so he/she is not eligible for resettlement.

IV. Outcome of the case

The court of first instance held that, as the implementing unit of the urban village transformation project, Qianjin Street Office had the authority to resettle eligible individuals within the scope of the demolition. Zhang ** was a member of the village collective economic organization. The urban village transformation project involved the recovery of housing plots and houses and compensation, which included both compensation for the cost of the house and compensation for the right to use the housing plot. In special circumstances, if a villager did not own a house in the collective economic organization to which they belonged, their legally entitled right to use the housing plot should also be protected through means such as replacement and compensation. Accordingly, it was determined that Zhang ** did not meet the conditions for non-resettlement, and Qianjin Street Office's refusal to resettle him lacked legal basis. Therefore, in accordance with Article 72 of the Administrative Litigation Law of the People's Republic of China, the court ordered Qianjin Street Office to compensate Zhang ** within 60 days from the effective date of the judgment, and the case acceptance fee of 50 yuan was borne by Qianjin Street Office.

In the second instance, Qianjin Subdistrict Office appealed that the house had been lost and there was no basis for inheritance, citing Article 52 of the "Several Provisions on Determining Land Ownership and Use Rights" to argue that the residential land should be recovered by the collective. The second-instance court ruled in accordance with Article 121, paragraph 1, and Article 124, paragraph 1 of the Civil Code that the original house was still intact and belonged to the estate when Zhang *1 died in 2003. As the legal heir, Zhang * should be deemed to have accepted the inheritance and could lawfully use the residential land in question. The existing evidence was insufficient to prove that the residential land in question had been legally recovered, and it could not be determined that Zhang * had lost the right to use the residential land by inheritance just because Wang * had built a house without approval. Accordingly, the second-instance court ruled in accordance with Article 86 and Article 89 (1) (1) of the Administrative Litigation Law of the People's Republic of China to dismiss the appeal and maintain the original judgment. The second-instance case acceptance fee of 50 yuan was borne by Qianjin Subdistrict Office. This judgment is final. Both the first and second instances were successful in protecting the villagers' resettlement and compensation rights.

5. Hengluo Law Firm's Advice

A residential plot cannot be inherited separately. Only when there is a legal house built on the residential plot and the heirs legally inherit and obtain the ownership of the house, can they simultaneously obtain the right to use the residential plot. Under the condition that the heirs have not waived their inheritance and the house has not been lost at the time of the commencement of the inheritance, the heirs may continue to use the residential plot based on the principle of "the house and the land being inseparable". The village collective shall recover the residential plot and cancel the registration in accordance with legal procedures. It cannot simply deny their legitimate rights and interests just because the house has been lost, is actually occupied by others, or the right holders have been working away from home for a long time. This case was handled by Beijing Henglu Law Firm.Zhang WeiAttorney (Practice Certificate No.: 11101202311579912, subject to the certificate issued by the judicial administrative organ) acting as an agent.

VI. Common Questions and Answers about Land Acquisition, Demolition, and Resettlement Compensation Cases

  1. Q: How to obtain relocation benefits if the homestead is registered under my father's name? A: If the house on the homestead has not been destroyed at the time of inheritance, you can claim the right to use the homestead based on the principle of "housing and land as a whole" and the rules of inheritance. If there are no other homesteads in the village, even if the house is destroyed, your legitimate rights and interests should be protected through methods such as replacement and compensation.
  2. Q: How to protect your rights if your house is occupied by others? A: You can assert your rights with evidence such as the certificate of use of the residential land and proof of inheritance. When facing demolition and relocation, you should require the implementing unit to legally determine your eligibility for resettlement and, if necessary, initiate administrative litigation.
  3. Q: If the house on the residential land is lost, can the residential land still be inherited? A: Inheritance begins when the decedent dies. If the house has not been lost at the time of death and the heir does not waive the inheritance, it is deemed that the heir has accepted it. The heir may continue to use the residential land in accordance with the law and will not lose their rights and interests simply because the house is subsequently lost.
  4. Q: Is it legal to say in the demolition that "those who have neither residential land nor residential houses will not be resettled"? A: This clause must be judged in light of the legitimate rights and interests of the inheritors. For members of the village who enjoy the right to use residential land based on inheritance, the clause cannot be directly applied to exclude them from resettlement, otherwise it may lack legal basis.
  5. Q: What should I do if I disagree with the response of not providing resettlement? A: You can file an administrative lawsuit in accordance with the law, requesting the revocation of the response and ordering the fulfillment of the resettlement and compensation obligations; at the same time, pay attention to collecting evidence such as proof of membership in the collective economic organization, house site certificates, inheritance, and the causes of the loss of the house.