How can the pathways for realizing farmers' usufructuary rights over residential land be improved?

The "Decision on Several Major Issues Concerning Comprehensively Deepening Reform" adopted at the Third Plenary Session of the 18th Central Committee of the Party proposed to “grant farmers more property rights”, of which farmers' usufructuary rights over residential land are an important component. Along with the processes of industrialization, urbanization and reform and opening up, the rural residential land system has become seriously disconnected from the needs of economic development and farmers' development. The poverty of farmers' usufructuary rights over residential land has also led to the emergence of a large number of problems, especially making it impossible for farmers to actively participate in and share the benefits of industrialization and urbanization through their own land rights, and making it difficult for them to obtain effective economic support for their urbanization from land rights. This should be improved as soon as possible.

I. The Imperfection of Farmers' Usufructuary Rights over Residential Land and the Problems It Causes

1. The subject of rural residential land ownership is vacant, and the infringement of land ownership powers by administrative power is serious. Since 1962, the ownership and use rights of rural residential land have been separated to this day. Although Chinese law clearly stipulates that rural residential land belongs to rural collective economic organizations, and members of rural collective economic organizations have the right to use residential land, whether the collective economic organization serving as the subject is the “village” or the “group” is relatively ambiguous in actual practice. This unclear situation of property rights leads to a lack of clear definition of the “responsibilities, rights and interests” of rural residential land use rights, further making it difficult for owners to exercise the rights of possession, use, income and disposal according to law, and weakening the powers of land ownership. Because the subject of rural land ownership is vacant, village cadres instead exercise part of the owners' rights, which leads to very serious interference by administrative forces in the allocation of residential land use rights. Due to this interference by administrative forces, the allocation system lacks transparency, and some people with greater power and higher status can obtain more residential land use rights. This not only causes irrational allocation of land resources, but is also detrimental to the harmony and stability of rural society.

2. The powers of farmers' usufructuary rights over residential land are incomplete, and it is difficult for farmers to share in the value-added income of residential land. In the "Property Law", farmers' residential land use rights are clearly defined as usufructuary rights. The law clearly stipulates: “The usufructuary right holder shall, according to law, have the right to possess, use and benefit from the immovable or movable property owned by others.” However, when specifically addressing residential land use rights, it provides: “The holder of residential land use rights shall, according to law, have the right to possess and use the land owned by the collective”, without mentioning the right to income. The "Interpretation of the Property Law" also only mentions that “residential land use right is a right with the nature of social welfare, is the foundation of farmers' livelihood, and residential land use right is a welfare guarantee that farmers enjoy based on their status as collective members.” It also holds that “the guarantee function remains the primary function of the residential land use right system”, without mentioning farmers' right to income and property rights over residential land. It can be seen that the usufructuary right over residential land is vaguely expressed and self-contradictory in law, has inherent deficiencies, and policies and regulations have not kept up, so that farmers' usufructuary rights over residential land are often ignored and infringed upon. In recent years, in the reform processes of village consolidation, exchanging residential land for housing, and centralized residence, generally only compensation is given for farmers' houses, without considering farmers' rights to income from residential land and the houses on it. It is very difficult for farmers to share in the transfer income and value-added income from construction land saved through consolidation.

3. The rural residential land planning and allocation system is unreasonable, and the problem of residential land waste is prominent. First, for a long time, because village construction in China has lacked reasonable planning, some places basically had no planning at all. At the same time, because the acquisition of rural residential land use rights is a welfare allocation method based on farmer household status and is provided to farmers free of charge and indefinitely, land users do not cherish the land, and phenomena such as excessive occupation, multiple occupation and idleness of residential land easily arise, causing waste of land resources. In the process of use, there is also a widespread cognitive deviation regarding residential land use rights, believing that residential land is private property, and that even if one does not use it oneself, others are not allowed to use it; even if it is left idle and abandoned, others have no right to intervene. The owner of residential land has the right to use it, but no obligation to use it reasonably. In the rapid development process of China's industrialization and urbanization, along with the historic migration of the rural population, 10%-15% of the country's 200 million mu of rural residential land is in an idle state. In labor-exporting areas, the problem of idle houses and residential land is even more prominent.

4. The phenomenon of rural residential land circulation is widespread, and policies restricting circulation have become a mere formality. The state has strict legal restrictions on the circulation of residential land, but in practice, various forms of residential land circulation have always existed, and farmers have stronger claims to property rights over residential land and houses. Hidden transactions of residential land are very common in urban suburbs and developed areas, generally carried out in the form of house circulation, including house leasing, house buying and selling, and cooperative house building. Among these, house leasing and house buying and selling are relatively common. It can be said that residential land circulation has a strong market foundation, and policies restricting circulation not only become a mere formality, but also make it difficult to ascertain the actual situation of residential land use and circulation, so that residential land-related management lacks a basis in real conditions.

5. The “relationship between houses and land” is vague, damaging the basic market value of farmers' housing and restricting farmers' income growth and urbanization process. The relationship between houses and land refers to the relationship between farmers' house property rights and residential land use rights in rural areas. Chinese law recognizes that farmers' houses are farmers' private property, and farmers have complete ownership of their houses, including the rights to possess, use, benefit from and dispose of their houses, and correspondingly should have the rights to buy and sell, lease, gift and mortgage. However, because house property rights and residential land use rights are not well separated, farmers' house property rights are not complete, and there is even a lack of basic property rights registration and certification. From the perspective of the objective economic value of rural houses, farmers often invest a large part of their income in residential construction, and houses generally constitute the main form of farmers' wealth, being the most important and valuable property of most farmers. Under market economy conditions, whether farmers' houses can circulate directly relates to whether farmers' property can be transformed into assets and then into capital, and appreciate in the process of flow, thereby realizing farmers' property income. In the process of urbanization and farmers' urbanization, farmers urgently need funds to solve problems such as purchasing housing and starting businesses in cities and towns. However, because of the contradiction between the disposability of farmers' houses and the non-circulability of residential land use rights to outsiders, farmers' houses are in fact very difficult to turn into property and cannot provide effective economic support for settling in cities. The residential land system has become disconnected from economic development and should be reformed and improved as soon as possible.