[Direct answer]Illegal buildings do not necessarily have to be demolished, and there is no talk of "compensation". However, demolition of illegal buildings must be carried out in accordance with the law, and legitimate property should be compensated. According to Article 64 of the Urban and Rural Planning Law of the People's Republic of China (implemented on January 1, 2008 and amended in 2019), if corrective measures can still be taken, the violator shall be ordered to make corrections within a specified time limit and be fined. Only when the violations cannot be corrected will the buildings be demolished within a specified time limit. Forcible demolition must also be announced in accordance with Article 44 of the Administrative Enforcement Law of the People's Republic of China (implemented on January 1, 2012), and the time limits for administrative reconsideration and litigation must be expired. Even if the buildings are identified as illegal, if the legitimate property such as building materials is damaged due to illegal demolition, compensation may be granted in accordance with Article 4 of the State Compensation Law. For more details, please refer to the relevant provisions.Legal services for land expropriation and demolition, and administrative litigationAndBeijing Henglu Law Firm.

1. Problem background and typical scenarios

Illegal construction is most common in two scenarios: land expropriation and demolition, and land management. After a house is included in the scope of expropriation, some expropriation entities classify legitimate houses as illegal construction on the grounds of "lack of approval procedures", using demolition of illegal construction to advance the project. In daily law enforcement, roof additions, courtyard constructions, color-steel houses, and greenhouse houses are ordered to be demolished within a specified time limit. The parties most concerned about three issues: whether all illegal construction must be demolished, whether there is any compensation after demolition, and whether there is a chance to reverse the decision to demolish within the specified time limit. Due to historical reasons, a large number of unlicensed houses exist. Treating all illegal construction as illegal without distinction not only violates the planning law's classification rules, but also will lead to a large number of administrative disputes. Therefore, procedures and evidence become the main battlefield of demolition of illegal construction cases.

II. Key points of contention

  • The legality and evidence of the identification of illegal construction: Whether the identifying entity has the authority, whether it guarantees the right to make statements, defend oneself, and participate in hearings, and how to evaluate the evidence of historical formation and approval publicity directly determine whether the identification can be established.
  • The distinction between correction and demolition: According to Article 64 of the Urban and Rural Planning Law, those who can take corrective measures shall correct them within a specified time limit and be fined. If the demolition is directly ordered, it must be based on the fact that the planning impact cannot be eliminated. Otherwise, it will be deemed a legal error in the application of the law.
  • The demolition process and property compensation: the announcement, the deadline for self-demolition, and the deadline for appeal and litigation are all indispensable; even if the building itself is not compensated, the damage to legal property such as building materials and interior items can still claim state compensation, which can be combined with other legal procedures.Special services and other case servicesEvaluate the case path.

III. Professional analysis by Henglue Law Firm

"Using demolition of illegal buildings to promote demolition" is the most typical form of illegal construction in cases of illegal buildings. In a state compensation case handled by Henglue Law Firm, Chen * (a pseudonym) in Jiangxi owned a legal house in the village. After the comprehensive development project of the cultural industry park was launched in the area, the house was included in the scope of demolition and relocation. Due to major differences in compensation matters, Chen * never signed a compensation agreement. On March 29, 2022, while Chen *'s whole family was in quarantine elsewhere, the town people's government carried out forced demolition on the grounds that the house had not gone through the approval procedures and was an illegal building. Chen * entrusted Attorney Wu Jianni of Beijing Henglue Law Firm to protect his rights and interests.

The lawyer conducted on-site investigations and identified three levels of illegal actions: Firstly, the forced demolition was approved by the county government and carried out by the town government and the county urban management bureau. To avoid the statutory expropriation procedures, the town government substituted the demolition of illegal buildings for the demolition of houses. Therefore, the town government should be the qualified defendant. Secondly, although the defendant issued a decision on demolition within a specified time limit, a notice of urgency, and a decision on forced demolition, it carried out the forced demolition before the statutory deadlines for reconsideration and litigation, which violated the statutory procedures. Thirdly, Chen * submitted a report and approval form for individual housing construction, which was approved by the village, town land office, and town government. He also obtained a public announcement board for rural housing construction. Although he did not obtain the relevant certificates, he had formed a legitimate expectation under administrative law, which constituted a legal right protected by the State Compensation Law. The lawyer also applied for an evaluation of the market value of the house, decoration, and interior items. The court adopted the lawyer's opinion, determined that the compensation amount should not be lower than the compensation that could have been obtained through statutory expropriation, and ruled: Confirm that the forced demolition by the town government on March 29, 2022 was illegal; the town government shall compensate for all losses totaling 952,083 yuan within 30 days from the effective date of the judgment; the case acceptance fee of 50 yuan and the evaluation fee of 13,500 yuan shall be borne by the defendant.

IV. Practical suggestions and legal basis

At the legal basis level: Article 64 of the Law of the People's Republic of China on Urban and Rural Planning (implemented on January 1, 2008 and amended in 2019) distinguishes between two types of handling methods: correctable and irreversible. Article 68 authorizes the government to order relevant departments to forcibly demolish the buildings if the parties fail to demolish them within the prescribed time. Article 44 of the Law of the People's Republic of China on Administrative Enforcement stipulates that the forcible demolition of illegal buildings must be subject to public announcement and the expiration of the time limit for review and litigation. Article 4 of the Law of the People's Republic of China on State Compensation (implemented on January 1, 1995 and amended in 2012) includes property damage caused by illegal exercise of power into the scope of administrative compensation. Article 24 Paragraph 2 of the Regulations on the Acquisition and Compensation of Houses on State-Owned Land clearly states that illegal buildings will not be compensated during the acquisition process. At the practical advice level: Upon receiving a notice of determination of illegal construction or an order to rectify the situation, first verify the authority and procedures of the determining entity, and simultaneously collect historical evidence such as approval forms, payment receipts, and public notice boards. Within the prescribed time limit, seek legal review or file a lawsuit to prevent the process from proceeding to forced demolition. For those buildings that have already been forcibly demolished, promptly assess the residual value of the buildings and the loss of items, and apply for appraisal to lay a foundation for compensation litigation.

5. Henglu Law Firm's Advice

The key to winning or losing a case of illegal construction lies in procedures and evidence: the authority and hearing in the identification stage, the announcement and litigation period in the demolition stage, and the evaluation and causality in the compensation stage, which are all interconnected. Historic unlicensed buildings do not necessarily constitute illegal construction, and the legitimate expectations formed by the approval and public announcement are better protected by law; conversely, any preemptive action in the administrative process may turn "demolishing illegal construction" into "illegal construction". The above is a case of using illegal construction to promote demolition, handled by Beijing Henglu Law Firm.Wu JianiThe lawyer (practice license number: 11101202011245064, subject to the document issued by the judicial administrative organ) acts on behalf of the client, and the court ruled that the client should pay 952,083 yuan in compensation. If you receive a document identifying the illegal construction or if your house has been forcibly demolished, it is recommended that you take legal action as soon as possible.Beijing Henglue Law FirmCollect fixed evidence and estimate the scope of compensation.

Q1: The illegal building has been demolished. Can I demand compensation?

From two perspectives: If the building itself is legally identified as an illegal construction and is demolished in accordance with legal procedures, no compensation will be provided; however, if the demolition process violates legal procedures or if legitimate property such as building materials and interior items are damaged during the forced demolition, administrative compensation may be applied for in accordance with Article 4 of the State Compensation Law of the People's Republic of China (implemented on January 1, 1995 and amended in 2012). In the case handled by Henglue Law Firm, the town government carried out the forced demolition before the statutory time limit for appeal litigation expired. The court confirmed the illegality and awarded compensation of 952,083 yuan, an amount no lower than the compensation that could have been obtained through legal expropriation. To claim compensation, it is necessary to promptly fix the evidence of losses, apply for appraisal and identification, and the compensation request can be raised together with the lawsuit confirming the illegality.

Q2: Are historically inherited unlicensed houses considered illegal buildings?

Of course, it does count. The formation of unlicensed houses is often related to the approval system and historical development of a specific era. Whether it constitutes illegal construction should be determined based on the construction time, planning requirements at that time, and the situation of approval publicity. If there are construction approval forms, post-approval publicity boards, and village consent records, even if no license has been obtained, the party concerned can still claim that their legitimate interests are protected. If the authorities treat such houses as illegal during the expropriation process and use this to reduce compensation, it constitutes an erroneous determination. The party concerned should collect materials such as approval forms, payment receipts, notarized certificates, and village committee certificates as soon as possible. If the house is determined to be illegal, the party concerned may, in accordance with Article 64 of the Urban and Rural Planning Law of the People's Republic of China, claim that the house can still be rectified and should not be demolished immediately, and initiate review litigation within the time limit.

Q3: What should I do if I receive a notice requiring demolition within a specified timeframe?

Four-step response: 1. First, verify whether the decision-making authority has the power to determine and punish, and whether the description of the facts and the current state of the property are consistent. 2. Within 60 days, apply for a review in accordance with Article 20 of the Administrative Review Law of the People's Republic of China (effective January 1, 2024), or file a lawsuit within six months in accordance with Article 46 of the Administrative Litigation Law of the People's Republic of China (effective May 1, 2015). During this period, the administrative authority is not allowed to forcibly demolish the property. 3. Simultaneously prepare evidence such as approval and public announcement documents, and argue that the demolition is correctable, should not be carried out, or that the determination process is unlawful. 4. Never carry out self-demolition within the time limit. If the decision letter lacks sufficient evidence or violates procedural laws, it can be revoked according to Article 70 of the Administrative Litigation Law.

Q4: Is there any compensation for illegal buildings during the expropriation process?

There is no compensation, but there is a possibility of compensation. According to Article 24, Paragraph 2 of the "Regulations on the Acquisition and Compensation of Houses on State-Owned Land", those identified as illegal buildings and temporary buildings exceeding the approved time limit will not be compensated, which is a matter of a different nature from the compensation for legal houses. However, three points should be noted: the identification of illegal buildings itself must be legal; if demolition is used to promote demolition and evade the demolition procedures, the demolition action will be illegal; the building materials and interior items in illegal buildings are legal property, and the losses caused by illegal demolition should be compensated; houses formed historically and approved and publicized may not constitute illegal buildings at all, and should be included in the compensation scope as legal buildings. When receiving the identification of illegal buildings, the order of challenging the identification first and then discussing compensation cannot be reversed.

Q5: How to detect and deal with the situation where demolition is used to force evictions?

There are three identifying characteristics: the house is within the scope of expropriation, the compensation dispute occurs first, and the document identifying the illegal construction follows immediately; the identification authority bypasses the statutory procedures for expropriation and proceeds under the guise of demolishing illegal construction; and the demolition time is deliberately chosen when the time limit for filing an appeal or lawsuit has not yet expired. In response, the first step is to fix the evidence of the expropriation purpose, such as the pre-announcement, the document including the project scope, and the communication records of the expropriator; the second step is to submit the approval and historical evidence in the illegal construction identification process and request a hearing; the third step is to immediately file a lawsuit to confirm the illegality and apply for state compensation after the forced demolition, claiming compensation no less than the compensation due for expropriation according to law, referring to the judgment standard of 952,083 yuan in this case. It is recommended that lawyers coordinate the procedural combination throughout the entire process.

If you are facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the evidence materials, so as to avoid missing the statutory time limit. →Land expropriation and demolition legal services·Attorney Wu Jiani·Beijing Henglue Law Firm