How are compensation and resettlement carried out for rural demolition?
Source: Nanjing Lawyer Network
As is well known, demolition compensation involves the interests of both the demolishing party and the party being demolished. In the process of rural house demolition, it generally involves strictly defined legal procedures such as laws on compensation for house requisition, basic compensation principles, public interest, compensation calculation standards, and resettlement principles. Since it involves the interests of the demolisher and the person being demolished, China's laws stipulate the statutory procedures and compensation standards for rural house demolition. Below, we introduce the compensation and resettlement issues in rural house demolition.
Compensation and resettlement are mainly based on the use and building area of the house being demolished, generally subject to what is recorded in the real estate ownership certificate, the rural homestead use certificate, or the house-building approval document. If the records do not match the actual situation, except for illegal structures that have already been confirmed according to law, the actual area shall prevail. Compensation and resettlement for rural house demolition mainly include:
I. Handling of special circumstances
1. At the time of the land requisition announcement, if the person being demolished has already obtained the house-building approval document and the new house has been completely built, compensation shall be given for the new house, and no compensation shall be given for the old house that should have been demolished but was not. At the time of the land requisition announcement, if the person being demolished has already obtained the house-building approval document but the new house has not yet been completely built, the person being demolished shall immediately stop building the house. The specific compensation amount may be compensated by referring to the contents of the house-building approval document, or may be determined through negotiation between the parties to the demolition;
2. For temporary buildings demolished that have not exceeded the approved period, appropriate compensation may be given.
3. Generally, no compensation shall be given for buildings that are illegal and should be demolished without compensation, temporary buildings that have exceeded the approved period, and parts of houses and their appurtenances that were newly built, reconstructed, or expanded without authorization after the land requisition announcement.
4. Within one demolition scope, if there is both state-owned land and collective land, the compensation and resettlement for demolished houses within the state-owned land scope shall be implemented in accordance with the regulations on the administration of urban house demolition; the compensation and resettlement for house demolition within the requisitioned collective land scope shall be implemented in accordance with the regulations on compensation and resettlement for house demolition on collectively owned land. If local regulations provide that it shall be implemented in accordance with the regulations on urban house demolition, those provisions shall prevail.
II. Provisions on compensation and resettlement for demolishing residential houses
1. Compensation and resettlement when the organizational system of the village or villagers' group whose land is requisitioned is abolished
The person being demolished may choose monetary compensation, or may choose an exchange for property-right housing of equal value to the monetary compensation amount.
The formula for calculating the monetary compensation amount is generally: (the replacement unit price for construction and installation of the demolished house combined with depreciation + the base price of land use rights per square meter of building area of newly built multi-story commercial housing in the same area + price subsidy) x the building area of the demolished house.
If the replacement method is selected for the appraisal of the demolished house, its replacement unit price for construction and installation combined with depreciation shall be appraised by a real estate appraisal institution with house demolition appraisal qualifications entrusted by the construction unit; the base price of land use rights per square meter of building area of newly built multi-story commercial housing in the same area and the price subsidy standard shall be formulated and announced by the city or county people's government where the demolished house is located based on the actual situation of the land market.
2. Compensation and resettlement when the organizational system of the village or villagers' group whose land is requisitioned is not abolished
Lawyers should understand that under current regulations, the demolisher shall provide compensation and resettlement to the person being demolished who has not been converted to urban household registration according to the following provisions:
In areas with conditions for building houses on another site, the person being demolished may apply for homestead land within the central village or residential point area determined by the township (town) overall land use plan to build a new house, and obtain corresponding monetary compensation;
The formula for calculating the monetary compensation amount is: (the replacement unit price for construction and installation of the demolished house combined with depreciation + price subsidy) x the building area of the demolished house; the costs required for the person being demolished to use the new homestead land shall be paid by the construction unit to the village or villagers' group whose land is requisitioned. The approval procedures for the person being demolished to apply for homestead land to build a new house shall be implemented in accordance with the relevant provisions of the state and local rural housing construction.
In areas without conditions for building houses on another site, the person being demolished may choose monetary compensation, or may choose an exchange for property-right housing of equal value to the monetary compensation amount. The person being demolished may no longer apply for homestead land to build a new house.
3. Other compensation
Lawyers should understand and inform the parties concerned that the demolisher shall compensate the person being demolished for moving subsidies, equipment relocation costs, and temporary resettlement subsidies during the transition period, and shall increase the temporary resettlement subsidy from the date the transition period expires.
4. The compensation principle should be that the living standard of the person being demolished is not lowered because of the demolition.
III. Compensation and resettlement for demolishing non-residential houses
In providing services for compensation for demolishing non-residential houses, lawyers should remind the parties concerned that such demolition and compensation should be conducive to local economic development and prevent negative impacts of demolition on the local existing industry, commerce, and employment.
The compensation standards are generally:
1. For demolishing non-residential houses owned by enterprises jointly established by rural collective economic organizations with other units or individuals in the form of land use rights as equity contributions, joint operations, and other forms, the formula for calculating the monetary compensation amount is: the replacement price for construction and installation of the demolished house + the corresponding land use rights acquisition cost
2. If the parties cannot reach an agreement on the replacement price for construction and installation of the demolished house and the corresponding land use rights acquisition cost, they shall be appraised by a real estate appraisal institution.
3. Other compensation:
(1) Equipment relocation and installation costs calculated according to the freight transport prices and equipment installation prices stipulated by the state and local regulations.
(2) Costs for equipment that cannot be restored to use, settled according to the replacement price combined with depreciation.
(3) Appropriate compensation for suspension of production and business caused by demolition.
(4) Compensation for other non-residential houses, sheds attached to residential houses, and other above-ground structures shall be implemented in accordance with the local property compensation standards for state construction land requisition.