[Direct answer]When a house is identified as an illegal construction but the identification process is not legal, the party concerned should first defend themselves through legal procedures rather than blindly resisting. According to Article 64 of the Urban and Rural Planning Law of the People's Republic of China (amended on April 23, 2019) and Article 44 of the Administrative Enforcement Law of the People's Republic of China (implemented on January 1, 2012), the decision to demolish within a specified timeframe must go through statutory procedures such as filing a case, investigation, notification, hearing, and service; if any of the procedures are missing, the party concerned may apply for reconsideration or initiate administrative litigation to revoke the decision. It is recommended to immediately save the service proof upon receipt of the document, apply for reconsideration within 60 days or initiate litigation within six months, and consult a professional lawyer about the planning procedures that can be rectified. For more details, please refer to the following link:Legal services for land expropriation and demolition, and administrative litigationAndBeijing Henglu Law Firm.

1. Problem background and typical scenarios

When facing the determination of illegal construction, many parties' first reaction is panic or resistance, which results in missing the most powerful defense point of procedural violations. Typical scenarios include: rural self-built houses being identified as illegal construction without obtaining a rural construction planning license; balconies being sealed up and auxiliary sheds being built in residential communities being verbally ordered to be demolished without a written decision; and historical legacy factories being identified as illegal construction due to missing archives. In these situations, the issuance of determination documents is often accompanied by procedural loopholes such as failure to file a case, failure to conduct an inspection, failure to notify, and failure to deliver the decision. By clarifying the procedural issues, we can combine them with the following measures to safeguard our rights:Legal services for real estate transactions and construction projectsThe planning permission rules in China are used to determine the legality of construction projects.

II. Key points of contention

  • Separation of the legality of the entity and the legality of the procedure: Even if the building entity lacks a permit, the determination process must still be legal. A procedural violation can independently constitute a reason for revocation, and the two should not be conflated.
  • Historical legacy and trust protection: If the local authorities did not strictly require permits when the building was constructed, or if the administrative authorities tacitly approved it, the claimant may invoke the benefit of trust. It is not appropriate to determine the issue mechanically according to current standards. Reference should be made to relevant provisions.Special services and legal services for other casesThe approach to handling individual cases in China.
  • The order of demolition: Forcing demolition without giving notice or making an announcement violates the procedures of the Administrative Enforcement Law and constitutes an illegal enforcement that is compensable according to the law.

III. Professional analysis by Henglue Lawyers

Henglue Lawyers summarized in planning and expropriation disputes that the success rate of defending against procedural violations is often higher than that of defending against substantive issues, but the difficulty lies in providing evidence. In terms of operation: first, apply for information disclosure to obtain the case filing form, inspection records, notification letters, hearing records, and service receipts, and compare each item with the statutory process; for oral notifications without written decisions, you can first require the administrative organ to issue a written determination to solidify the disputed objects. For rural historical buildings, you should also check the local planning management requirements at the time of construction, and distinguish between those that should be handled but have not been handled and those that should not be handled at all. For losses after forced demolition, you can refer to the relevant provisions.Legal services for creditor-debtor relations and enforcement casesThe property preservation method in China involves listing the items in a video before demolition and applying for evidence preservation.

IV. Practical suggestions and legal basis

At the legal basis level: Article 64 of the Urban and Rural Planning Law of the People's Republic of China (amended on April 23, 2019) sets out the rules for dealing with construction projects that have not obtained or been built in accordance with the construction project planning permit; Articles 35 to 44 of the Administrative Enforcement Law of the People's Republic of China (implemented on January 1, 2012) specify the procedures for urging, notifying, announcing, and forced demolition, and Article 44 specifically requires that illegal buildings must be urged and announced, and that the parties must not appeal, sue, or demolish within the statutory time limit before they can be forcibly demolished; Article 9 of the Administrative Review Law of the People's Republic of China sets a 60-day review period; Article 46 of the Administrative Litigation Law of the People's Republic of China sets a six-month time limit for filing a lawsuit. Practical suggestions: Record and back up all documents on the day they are received; apply for information disclosure within ten days to obtain the full set of materials; initiate review or litigation against failure to notify, failure to hold a hearing, or failure to serve the notice, and apply for suspension of enforcement; prepare application materials simultaneously if supplementary procedures are needed.

5. Henglu Law Firm's Advice

The procedures for identifying illegal construction are illegal, and the most taboo thing is procrastination. The time limits for administrative reconsideration (60 days) and litigation (6 months) are very short. Starting from the receipt of the document, it will be difficult to seek remedies if the time limit is exceeded. The parties should focus on procedural evidence: service certificates, notification letters, hearing notices, and inspection records are all indispensable. If any of them are missing, they should claim them immediately. For those with historical reasons or procedures that can be supplemented, procedural defenses and substantive corrections can be carried out in parallel, and it is not advisable to choose one over the other. When encountering threats of forced demolition, priority should be given to recording videos to protect indoor property and applying for a stay of execution. If necessary, consult professional lawyers about compensation and correction plans.

VI. Frequently Asked Questions

Q1: If your own house is identified as an illegal construction but the procedures are not complete, what should you do first?

First, do three things: First, fix the documents. Copy or take photos to save the "Decision on Ordering Demolition within a Time Limit" and note the date of delivery, which is the starting point for calculating the time limit for reconsideration and litigation. Second, check the procedures. Compare with the statutory procedures to verify whether the decision has gone through the stages of filing, investigation, notification, hearing, and delivery. Any missing items indicate illegalities. Third, collect ownership and historical materials, such as building approval documents, residential land certificates, village committee certificates, and historical images, to prove the construction background and its legitimacy. It is strictly prohibited to demolish the building on your own or engage in violent confrontation. Instead, you should initiate reconsideration or litigation within the time limit and consult a lawyer about the procedures that can be rectified. Prepare for both procedural violations and substantive rectifications simultaneously.

Q2: If the procedure for identifying illegal construction is illegal, is the notice requiring the demolition within a specified timeframe still valid?

A notice of demolition with major and obvious procedural violations may be revoked and temporarily not have final effect. According to Article 70 of the Administrative Procedure Law of the People's Republic of China, if an administrative act violates legal procedures, the court may order its revocation or partial revocation; if there are only minor procedural defects and no substantial impact on the substantive conclusion, it may be ruled as illegal but not revoked. Therefore, the parties cannot simply judge the notice as invalid and refuse to perform it on their own, but should file a lawsuit within the statutory time limit for the court to determine its validity. For the revoked notice, subsequent forced demolitions will lose their basis, and the parties may claim compensation separately.

Q3: Is it a procedural violation to be required to demolish a building without receiving the identification document?

It belongs to. Service is a crucial step in the legal process. If the "Order for Demolition within a Time Limit" is not served in accordance with the law and demolition is ordered immediately, it deprives the parties of their rights to be informed, to make statements and defenses, and to seek remedies, constituting a procedural violation. In practice, some authorities only notify or post notices verbally before forcibly demolishing the property. The parties can claim that the authorities failed to fulfill their obligations to issue written decisions and serve notices. In terms of remedies, they can provide evidence in litigation that they never received legal documents, request confirmation that the demolition action is illegal and compensation; at the same time, they can also raise procedural flaws in the substantive determination process to the appeal authority or the court, to avoid being regarded as tacitly accepting the demolition.

Q4: Can the determination of an illegal construction that violates procedures be challenged and revoked in court?

Yes, and it is a common path to victory in litigation. In the litigation, the parties provide evidence around procedural requirements: proving that the case was not filed in accordance with the law, the lack of inspection records, the failure to inform the parties of their rights to make statements and defenses in writing, the failure to hold a hearing when required, and the non-delivery of legal documents, etc. Based on Article 70 of the Administrative Litigation Law, the parties request the court to revoke the administrative act. The court generally reviews whether the administrative organ has fulfilled its statutory procedural obligations. If the procedural deficiencies reach the level of significant and obvious violations of the law, the court will determine that the act is invalid or revocable. To increase the chances of winning, the parties should match each procedural deficiency with specific legal provisions and evidence. When necessary, they can apply to the court to retrieve the internal approval materials of the administrative organ, and the lawyer should organize the procedural and substantive defenses in a unified manner.

Q5: If there are flaws in the identification process for illegal construction, can the formalities still be completed to convert it into a legal construction?

Depending on the circumstances, efforts can be made to rectify the situation. For buildings identified as illegal solely due to historical reasons, missing materials, or procedural flaws, if they comply with current planning regulations and do not harm public interests, they can apply for retroactive construction project planning permits or relevant approval procedures by providing proof of land use rights, building approval documents, village committee or neighborhood committee certificates, and historical photos. Whether the application can be successful depends on whether it complies with national spatial planning and local policies. Not all illegal buildings can be rectified. Procedural flaws themselves do not affect the application for rectification, but applicants should prepare the necessary materials for rectification at the same time as filing an appeal to avoid losing the opportunity for remediation if the original determination is upheld. It is recommended to consult a lawyer to assess the feasibility of rectification and time limits, and to coordinate the two approaches of appealing and applying for rectification.

The above Q&A is mainly based on the judicial practice in Beijing. There may be differences in the adjudication standards in different regions. It is recommended to consult a professional lawyer based on the specific circumstances of the case.

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