[Direct answer]If the area of the resettlement housing is smaller than that agreed in the compensation and resettlement agreement, the expropriated persons may, in accordance with the agreement, pursue the breach of contract liability and demand that the area be supplemented, the housing price difference be paid, and corresponding compensation be provided. According to Article 25 of the "Regulations on the Expropriation and Compensation of Houses on State-Owned Land" (effective from January 21, 2011), if a party fails to fulfill its obligations after the conclusion of the compensation agreement, the other party may sue it in accordance with the law; if the expropriation and compensation agreement is an administrative agreement, it may be sued in accordance with Article 12 (1) (11) of the "Administrative Procedure Law of the People's Republic of China" (amended and implemented on July 1, 2017), and in accordance with Article 78 of the same law, the court may order the party to continue to perform the agreement or compensate for the losses.

I. Legal basis and interpretation of provisions

1. Article 25 of the "Regulations on the Acquisition and Compensation of Houses on State-Owned Land" (effective from January 21, 2011)

This article establishes a compensation agreement system, and fixes the compensation content as an enforceable written right. Regarding the burden of proof, the party who alleges a breach of contract shall bear the burden of proof: the expropriated person shall submit the original agreement, the notice of house delivery, and the actual measurement report; if the expropriating party alleges that it has performed in accordance with the agreement, it shall submit the housing allocation ledger and the settlement list. The exception is that the agreement distinguishes between "net floor area" and "floor area", and different standards may lead to a nominal reduction in compensation.

2. Articles 12 and 78 of the Administrative Procedure Law of the People's Republic of China (amended and implemented on July 1, 2017)

Article 12 Paragraph 1 Item 11 includes "believing that the administrative organ fails to perform its duties in accordance with the law, fails to perform the agreement according to the provisions, or illegally amends or terminates the land and housing expropriation compensation agreement" into the scope of acceptance of the case. Article 78 stipulates that if the defendant fails to perform the agreement according to the law or fails to perform the agreement according to the provisions, the court shall order it to continue to perform the agreement, take remedial measures, or compensate for the losses. Regarding the burden of proof, the expropriated person only needs to prove that the agreement does not conform to the actual delivery, and the administrative organ claiming that the reduction is a legitimate amendment shall provide the basis for its claim. The statute of limitations for filing a lawsuit shall not be interrupted due to the consultation.

3. Article 48 of the Land Administration Law of the People's Republic of China (effective from January 1, 2020)

This article stipulates that the expropriation of land shall be conducted in a fair and reasonable manner, and provides that the housing of rural villagers shall be compensated in accordance with the principle of "compensation first and relocation later", and the living conditions shall be improved. The compensation methods include rearranging the housing plots for house construction, providing resettlement housing, or providing monetary compensation. If the area of the resettlement housing is insufficient, leading to a decline in living conditions, the villagers can directly claim supplementary compensation on the basis of "improved living conditions".

4. Practical adjudication guidelines

The court generally handles cases in three ways: First, if the agreed upon area and the compensation clause are clear, the court will decide to make up the shortfall in area or pay the difference in price according to the agreement. The difference in price is generally based on the market evaluation unit price of similar houses in the same area at the time of delivery; Second, if the difference is within a reasonable deviation range, some judgments tend to settle the matter by returning the excess and making up the deficiency; Third, if the delivery party refuses to compensate for the difference on the grounds of adjusting the housing inventory or verifying the area, the court usually requires them to submit approval documents and the basis for the changes.

II. Henglue Law Firm's Real Cases (Detailed Review)

Review of the case:Mr. Yu (a pseudonym) from Hebei owns a legal house in the local area. After the local government launched the old city renovation project, Mr. Yu signed a demolition agreement with a real estate development company (hereinafter referred to as "the developer") stipulating that the developer would provide Mr. Yu with resettlement housing.200 square metersMr. Yu only needs to pay for the construction costs and parking space fees, etc. However, when the house was delivered in 2023, the developer required Mr. Yu to accept it.250 square metersThe store's area exceeded the agreed upon amount by 50 square meters, far exceeding Mr. Yu's ability to pay, and violating the terms of the agreement. The developer further refused to deliver the house on the grounds that "Mr. Yu owed the project payment and still owed the excess area payment", claiming that the store had been resold and could only be compensated with a discounted price, and promptly sued Mr. Yu in court. Mr. Yu insisted on getting the house according to the agreement, so he entrusted Beijing Henglu Law Firm to handle the case for him.文品良The lawyer protects the client's rights and interests.

The focus of the controversy:First, whether the disputed demolition and resettlement agreement is invalid due to the qualification of the contracting parties; Second, whether the developer's failure to deliver the agreed-upon housing and its forced demand to accept oversized commercial premises constitute a fundamental breach of contract; Third, whether the developer's two demands of "requiring continued payment while only willing to pay a discounted price" are self-contradictory.

Our position and the position of the other party are as follows:The developer sued Mr. Yu to pay the construction fees and requested the court to rule that he only needed to pay the discounted value of the house. Attorney Wen Pinliang put forward five defense opinions and filed a counterclaim: Firstly, the plaintiff is not an administrative organ nor a people's government at the county level or above, and does not have the statutory authority to initiate and sign agreements involving land expropriation, demolition of houses, etc. Moreover, he failed to prove that he had obtained government authorization, so the disputed agreement should be deemed invalid. Secondly, Mr. Yu's main contractual rights are to obtain the agreed 200.2 square meters of shops. The developer refused to hand over the house on the grounds that the construction project fees had not been paid, which clearly violates the original intention of the contract and results in an imbalance of rights and obligations between the two parties. Thirdly, the developer's two claims are contradictory. Fourthly, Mr. Yu has already paid the construction project fees referred to in the first claim. The developer once issued a receipt and acknowledged in subsequent communication that no further payment was required. Fifthly, the developer actually delivered a house with an area exceeding the agreed one by 50 square meters, aiming to forcefully sell the house and unreasonably increase Mr. Yu's burden.

Attorney's Strategy and Legal Opinions:After accepting the commission, Attorney Wen Pinliang, on the one hand, actively represented the client in the litigation, and on the other hand, resolutely initiated a counterclaim. He put pressure on the other party with two points: "the agreement may be invalid" and "the developer's failure to deliver the house constitutes a fundamental breach of contract", turning the initiative of the negotiation from "passive payment" to "requiring delivery of the house according to the contract". Regarding the area dispute, the lawyer strictly adhered to the 200 square meters stipulated in the agreement, and clearly pointed out that the developer's request to settle according to 250 square meters was a unilateral change of the contract content and an improper increase of the buyer's burden, which should not be supported according to law.

The court's reasoning and the outcome of the case:Under the pressure of litigation and fearing an unfavorable judgment, the developer eventually agreed to mediation. Through mediation presided over by the court, the two parties reached an agreement: Mr. Yu would pay the construction price, the housing price difference, and the parking space fee; and the developer would deliver the agreed-upon houses (first and second floors) and the keys, as well as one underground parking space to Mr. Yu before December 31, 2023. In the end, Mr. Yu received the houses as agreed and was not forced to accept the oversized 250-square-meter commercial space. This case shows that if the resettlement housing area does not match the agreement and the developer refuses to deliver or forcibly sell it, the resettled people can legally assert the validity of the agreement and the fundamental breach of contract, and strive to receive the houses as agreed through defense and counterclaim.

This case is handled by Beijing Henglu Law FirmWen Pinliang is a talented writer who has made outstanding contributions to the development of Chinese literature.Attorney (Practice Certificate No.: 11101201910111365, subject to the document issued by the judicial administrative organ) acting on behalf of the client. Similar disputes may also be referred to for referenceReal estate sales and purchase, construction project legal services.

III. Frequently Asked Questions

Q1: If the delivered area of the public housing is less than what was agreed in the contract, how much compensation can I claim?

You can request to make up for the shortage of area or claim compensation for the price difference. If there is a clause on compensation for the price difference in the agreement, the compensation shall be calculated according to the agreed terms; if there is no such clause, the compensation for the price difference shall generally be calculated by multiplying the area of the shortage by the market evaluation unit price of similar houses in the same area at the time of delivery, rather than by the compensation unit price at the time of expropriation many years ago. If the expropriator refuses to perform the obligation, you may, in accordance with Article 78 of the Administrative Litigation Law, request the expropriator to continue to perform the obligation or compensate for the losses, and, in accordance with Article 25 of the Regulations on the Expropriation and Compensation of Houses on State-Owned Land, claim for the continued payment of the temporary resettlement fees during the transition period.

Q2: The original compensation and resettlement agreement has been taken away by the expropriator. Can I still file a lawsuit?

Yes, but you must first provide additional evidence. There are three approaches: First, apply for government information disclosure to retrieve the project acquisition decision, compensation and resettlement plans, and the materials on file for your agreement; Second, review the acquisition and compensation archives and the housing distribution lists; Third, corroborate each other with indirect evidence such as village affairs disclosure records and neighbor agreements, and apply to the court for evidence retrieval. Don't wait too long because the original documents have been confiscated. The statute of limitations for suing will not be interrupted due to the negotiation process.

Q3: Without a land use right certificate, can I still receive compensation for this expropriation?

The key issue is whether the provisions of the agreement and the actual delivery are consistent. The core evidence for disputes over the area of resettlement housing includes the compensation and resettlement agreement, the housing allocation ledger, the settlement list, and the actual measurement report. If the agreed area in the agreement is clear but the actual delivery is insufficient, the party may claim breach of contract liability in accordance with Article 25 of the "Regulations on the Acquisition and Compensation of Houses on State-Owned Land" and request to make up the shortage of area or compensate the difference in price according to the market assessment unit price of similar houses in the same area at the time of delivery. In this case, the developer agreed with Mr. Yu to resettle him with 200 square meters of housing, but demanded that he accept 250 square meters of commercial housing and refused to deliver the housing on the grounds of "excess area payment". Eventually, through litigation pressure and court mediation, Mr. Yu still received the housing in accordance with the original agreement and was not forced to accept the excess area. According to Article 48 of the "Land Management Law of the People's Republic of China", the land acquisition shall be compensated in a fair and reasonable manner.

Q4: If the collection department does not respond or process the application after receiving it, what can be done about it?

The three-step progressive procedure can be initiated. Firstly, a written "Application for Performance of Resettlement and Compensation Duties" shall be submitted, stating the applicant's identity, the land situation, and the compensation claims. The application shall be sent by express mail and the receipt voucher shall be retained to fix the facts of the application and the starting point of the response. Secondly, if the administrative organ fails to respond within the statutory time limit or provides an evasive response, an administrative reconsideration shall be applied for in accordance with the "Administrative Reconsideration Law of the People's Republic of China", requesting to confirm that its failure to perform statutory duties is illegal and ordering it to perform the duties within a specified time limit. Thirdly, if the administrative organ still fails to perform the duties after the reconsideration, an administrative lawsuit may be initiated to request a judgment to enforce the performance of the duties.

Q5: If the area of the public housing is reduced, should we negotiate first or sue directly?

It is recommended to proceed simultaneously, conducting written negotiations while fixing evidence and preparing procedures. There are three reasons for this: First, both administrative reconsideration and administrative litigation have statutory application and litigation deadlines, and repeated negotiations may easily waste these deadlines; Second, written objections, lawyers' letters, and requests for information disclosure can themselves create pressure and serve as evidence for subsequent claims; Third, the core issue of the area reduction is the discrepancy between the agreement and the actual delivery, which requires first retrieving the housing allocation ledger and settlement lists in order to calculate the area difference and price difference. It is recommended to measure the actual area on the day of receiving the house and file a written objection, and then choose either reconsideration or litigation based on this.

IV. Suggestions for Protecting Your Rights

  • On the day of receiving the house, the actual measured area shall be verified by a qualified surveying and mapping agency, and the measured area and floor plan shall be checked item by item against the agreed area and floor plan. If any discrepancies are found, a written objection shall be raised on the spot and the delivery receipt shall be preserved.
  • Keep the agreement and all the acquisition documents safe: The original copies of the compensation and resettlement agreement, the acquisition decision, the appraisal report, and the housing allocation notice must be kept by yourself; if the originals are taken away, retrieve the backup copies through the government information disclosure in time.
  • Pay attention to the scope and deadlines: First, make sure whether the agreement stipulates the building area or the net building area, to avoid a nominal reduction in value. At the same time, keep an eye on the statutory deadlines for reconsideration and litigation, and don't miss out on them due to prolonged negotiations.
  • Be vigilant against the disguised price increase of "exchanging extra area for delivery": If the agreed area differs from the area actually required by the developer for delivery, do not make payments or accept the house first. Instead, you should raise objections in writing and demand that the developer fulfill the agreement to avoid being refused delivery of the house on the grounds of "excess area fees".

If you are facing similar problems, it is recommended that you consult a professional lawyer as soon as possible, bringing along the compensation and resettlement agreement, the notice of housing allocation, and the actual measurement materials. →Legal services for administrative litigation of land expropriation and demolition·Attorney Wen Pinliang·Beijing Henglu Law Firm