Automatic renewal of residential land use rights?

The Property Law of People's Republic of China (PRC) is the basic law to confirm, utilize and protect property, and it is also an important law to adjust property relations. Some legal experts commented that one of the main purposes of China's property law is to "build a perfect legal system for the protection of private property, protect private property according to law, and finally make all sources of social wealth fully flow in". The "private property into the constitution" is considered to be a major event in the process of formulating the property law. The author intends to talk about the relevant issues of property law after the expiration of the term of residential land use right, hoping to play a role in attracting jade.

First, the property law is clear: the right to use residential land will be automatically renewed after it expires.

Article 149 of the Property Law stipulates: "The right to use residential construction land will be automatically renewed when it expires."

"After the expiration of the term of the right to use non-residential construction land, the renewal procedures shall be handled according to law. The ownership of houses and other immovable property on the land, if there is an agreement, shall be in accordance with the agreement; If there is no agreement or the agreement is unclear, it shall be handled in accordance with the provisions of laws and administrative regulations. "

Second, interpretation: the right to use residential land will be automatically renewed after its expiration.

People who buy commercial housing must have two certificates: real estate license and land certificate, which is valid for 70 years. Many people are concerned about whether the land occupied by the house is still mine after 70 years, and whether it is necessary to pay the land again. The Property Law clearly stipulates that the state allows renewal, but it has to pay the leasing fee for land use rights. As for how much to pay, there is no conclusion yet. According to the property law, the state allows homeowners to renew their land use rights. Then, if the owner refuses to renew the lease, the state will recover the land, but who owns the above-mentioned houses is still controversial and deserves our attention. The practice in foreign countries is that buildings belong to landowners. What about China?

The term of land use right first appeared in the second draft of the property law. The second review draft stipulates: "When the term of the right to use construction land expires, the right to use construction land will be eliminated; The registration authority shall recover the certificate of the right to use the construction land; If the right to use the construction land expires and the holder of the right to use the construction land needs to continue to use the land, he shall apply for renewal one year before the expiration; The renewal shall pay the land transfer fee. "

Until the fourth draft, the renewal of the right to use construction land was divided into residential land and non-residential land, and it was proposed that the right to use residential construction land would be automatically renewed when it expired, but the provision of paying land use fees was still retained. By the time of the sixth trial, the draft cancelled the provision of renewal of payment until the final draft was reviewed and approved.

In China, the ownership of land belongs to the state, and other units and individuals can only obtain the right to use the land. The only difference is the terminology. The land use right obtained by the developer of construction land is limited, while the property ownership obtained by the owner is permanent. The current law of our country stipulates the maximum period of the right to use construction land: 70 years for residential land; Industrial land for 50 years; Commercial land for 40 years; Comprehensive utilization of land for 50 years. In fact, China began its reform and opening up in the late 1970s. At that time, some of the land sold was short-lived, and some were only about 30 years old and were about to expire. Especially at present, most urban residents have their own houses, which makes the expiration of land use rights more interesting. What about the land after expiration? Who owns the buildings on this land? According to the current regulations, after the expiration of the time limit, the land use right and the ownership of the above-ground buildings and other attachments will be nationalized free of charge. Citizens can apply for renewal, subject to approval, re-sign the contract and pay the leasing of land use rights. Once it is not approved, citizens may lose their homes. Land tenure is like a time bomb, which worries real estate investors.

Therefore, the property law stipulates that the right to use residential land will be automatically renewed after the expiration, which undoubtedly gives people a reassurance. The so-called "automatic renewal" means that as long as the building where the house is located is healthy and not scrapped, there is no limit to the renewal of land use rights, and it can be renewed under any circumstances. People don't have to worry about the destruction of houses and old age. However, the Property Law does not clearly stipulate how to renew the lease, the procedures and expenses for renewing the lease, so we China people finally have a house to inherit from the reform and opening up to today. If you have grandchildren, the situation of the house is still unclear, which is disturbing! Therefore, the author suggests that the relevant functional departments of the state must be cautious and deliberate when formulating relevant regulations, and carefully consider this issue without leaving sequelae.

Third, the comments of scholars

Professor Wang Liming, one of the drafters of the Property Law and a member of the the National People's Congress Standing Committee (NPCSC) Law Committee, said in an interview with the media: As long as houses exist, the term of land use will last. As for the renewal period and the renewal fee, there is no more explicit provision in the property law, and the specific operation details are complicated, and there are also great differences and disputes. Therefore, when the property law was formulated, the specific operation methods were intentionally skipped or avoided, and only the basic principles were stipulated. At present, the expiration of land use rights is still relatively rare, and it is estimated that the first peak of land use rights of houses will occur in ten years, so relevant departments are formulating detailed rules for the implementation of the property law. According to the provisions of the Property Law, this important legislative task involving the interests of thousands of families will fall on the State Council's shoulders.

At present, there are three mainstream opinions about the renewal fee. The first opinion is that if there is no agreement or the agreement is unclear, the transfer fee at the time of renewal shall be paid according to the market price; The second opinion is that the land transfer fee paid when the land use right is obtained for the first time should be deducted from the benchmark land price determined by the county government in the year of applying for renewal; The third view is that the renewal of the lease should be exempt from the transfer fee, or only pay the replacement fee.

Operationally, this automatic renewal clause was implemented in Shenzhen, the forefront of China's reform and opening up. The current practice in Shenzhen is that when the house is renewed due, a large amount of land transfer fee must be paid according to the market price of the land, so it is almost impossible to operate. Suzhou's current housing reform houses are listed, and this is the case with villagers' homesteads. However, all restrictions are generated in the trading process. If the owner's property right expires and the house is not listed for trading, this fee may not be paid.

Four, the automatic renewal of the right to use residential land after the expiration of the term is in line with the original intention of legislation.

The term of the right to use residential construction land expires and is automatically renewed. After the expiration of the right to use non-residential construction land, the renewal procedures shall be handled according to law. The above provisions of the Property Law have eliminated people's worries about the housing fate after the 70-year expiration of the right to use residential construction land.

Professor Su, director of the Department of Civil and Commercial Law of the School of Law of the University of International Business and Economics, said in an interview that compared with the current Land Management Law and the Urban Real Estate Management Law, the provisions of the Property Law on the right to use construction land have undergone the following changes and progress:

The first is to replace the concept of state-owned land use right in People's Republic of China (PRC) Urban Real Estate Management Law with the right to use construction land.

The second is to clarify the scope of establishing the right to use construction land, which can be established on the surface, above ground or underground of the land.

Third, it is clearly stipulated that commercial land such as industry, commerce, tourism, entertainment, commercial housing, etc., and there are more than two intended land, should be sold by public bidding, auction, etc., which has changed the practice of allowing such land to be sold by mutual agreement in the People's Republic of China (PRC) Urban Real Estate Management Law.

Fourth, it is clear that the ownership of buildings, structures and ancillary facilities built by the construction land holder belongs to the construction land holder.

Fifth, it clearly stipulates the compensation problem when the state needs to recover the land in advance because of public interests before the expiration of the term of the right to use the construction land, and demands the return of the corresponding transfer fee.

Professor Su also said that the new provisions of the Property Law on the right to use construction land have greatly expanded the scope of this right. The right to use construction land can be established not only on the surface, but also on the ground and underground, which embodies the full play of the utility of things and makes resources optimally allocated as much as possible in the market economy environment. Especially in the urban construction where resources and land are scarce, this article is of great significance.

In addition, Professor Su believes that the provisions of the Property Law on the right to use construction land have brought a series of positive impacts on the production and life of people and enterprises. First of all, further standardize the way of establishing this right to avoid the loss of state-owned assets or improper transactions; Secondly, the comprehensive regulation of this right scope provides sufficient legal basis for the construction and ownership of overpasses, subways and underground garages; The third is to allow the automatic renewal of the right to use residential construction land to ensure people live and work in peace and contentment.

In fact, in the eyes of China people, a house is not only a place to settle down, but also an important real estate in the family. Therefore, the property law establishes that the right to use residential land will be automatically renewed after its expiration, which undoubtedly changes the separation of land use right and house ownership into unity after its expiration, effectively protecting the private property of ordinary people, that is, it conforms to the legislative intention of the property law that public and private property are equal and protected by law.

Five, the impact of renewal of payment of land transfer fees on housing prices

Although the Property Law does not explicitly stipulate the renewal of land leasing, under the current system, the provisions on the renewal of land leasing will not be cancelled. Moreover, the land cost of renewal will not be too different from the surrounding market price, otherwise there will be room for arbitrage and rent-seeking. Therefore, judging from the current legal provisions, the only advantage of this provision is that it may reduce housing prices. Because, once the Property Law has a clear stipulation, the housing demanders should consider the burden after 70 years when buying a house, and the demand will be affected to some extent, so it is possible to reduce the nominal house price. But the house price is not determined by the buyer in the end, so this only benefit may not be realized. Moreover, Mr. Qingyi, who is currently the director of the Institute of Economic Observation, the economic researcher of China Institute of National Conditions and Development, the academic consultant of New Fortune, the executive director of China Securities and Futures magazine, and the financial consultant of the Annual Report of Listed Companies in the column of CCTV China Securities, also wrote Five Defects of Automatic Renewal after 70 Years. Mr. Qingyi thinks:

1, overprotecting private rights. Public right and private right are a pair of the most basic and complicated concepts in real right. The key is that public power is not only a restriction on private rights, but also a protection of private rights. The right of private residence is always associated with the right of private land. Although China has not recognized the private right or private ownership of residential land, there is no essential difference between the private right of land use and the nominal permanent private ownership of land in a certain period of time, or the gap between them has become smaller and smaller in today's world.

2. Set obstacles for long-term economic growth. Adam Smith's theory that land is the mother of wealth and labor is the father of wealth reveals the mystery of human production activities most accurately. As the most basic means of production, land contains its necessary value content in all the fruits of labor, so improving land use efficiency can create more social wealth. China stipulates that the term of residential land use right is 70 years, not 60 years equal to the design life of buildings, which is a manifestation of ignoring the value of land and itself reduces the efficiency of land use. As for the automatic renewal after the expiration, it is tantamount to further reducing the efficiency of land use.

3. Encourage housing prices to rise in disguise. The 70-year right to use residential land and its automatic renewal after expiration mean that residential land cannot form a secondary supply in an unpredictable period. This will inevitably aggravate the shortage of land resources and lead to rising house prices in the case of short supply.

4. Lack of environmental awareness. The law of automatic renewal of residential land use right after 70 years tends to encourage improper extension of residential life and the continued use of non-recyclable building materials such as cement, which runs counter to the efforts to improve the reuse rate of building materials and build factory houses. On the contrary, if the service life of residential land is appropriately shortened, recyclable building materials are used as much as possible without affecting the design life of residential buildings, and the proportion of industrialized residential buildings is increased, the environmental damage caused by construction waste can be effectively reduced.

5. Misleading government responsibility. Whether Mr. Qingyi's analysis is correct remains to be seen.

However, we also have to admit that after 70 years, the rent paid by housing users will depend not only on the future house price, but also on the attitude of the future government. At present, the biggest driving force to boost land prices and housing prices comes from the interests of local governments themselves. It is still difficult to reduce land price and house price under the current macro-system framework, especially the central and local fiscal tax sharing system established by 1994. So it goes without saying that 70 years later, in fact, in less than 50 years, buyers will begin to face the decision-making problem of whether to continue to pay or how much local tax.

In fact, the current situation of high housing prices is not completely unsolvable. As long as there are reasonable institutional arrangements, local governments can have the same financial resources as local governments in some western countries without relying on land sales, and local tax growth and stable housing prices can coexist. Economist Yang Xiaokai once said that about half of the land owned by Australian and American local governments is used for parks and public facilities. Because other land is private, the land price of private land depends on the quality of public facilities, and the fiscal revenue (property tax) of local governments depends on the land price of private land. Coupled with free flow, a feedback mechanism has been formed between the land price and the management effect of government-owned public land. The better the management effect of public land, the higher the land price of private land, the higher the income of local governments, and the more money local governments have to build high-quality public facilities, so the better the management effect of public land, the more people are willing to move here. This has formed a healthy competition for local governments to improve public services. Therefore, we can solve the problem of land rent renewal from another angle, so as to benefit the people and increase local financial resources.

Although, after the promulgation of the Property Law, there are endless voices of praise and criticism, in any case, the Property Law is still a legal rule about the ownership and utilization of property, and its role is to clarify the ownership of property and give full play to its effectiveness. The ownership system, usufructuary right system and security right system stipulated in the Property Law are all basic systems for implementing the socialist market economic system. Therefore, it can be said that the property law is undoubtedly one of the basic laws of the socialist market economy. The formulation and implementation of property law is of great practical and far-reaching historical significance for stimulating the creative vitality of the whole society, building a well-off society in an all-round way and building a harmonious socialist society.

For more information about project/service/procurement bidding, and to improve the winning rate, please click on the bottom of official website Customer Service for free consultation:/#/? source=bdzd