legal master

Chapter 39 Questions and Answers on the Evidence of Disputes over House Sale and Demolition (5)
Villager Niu and Hu are neighbors.In 1999, Niu was approved to build a house on a homestead measuring 17 meters from east to west and 20 meters from north to south, and received a collective land construction use certificate, but he has never built a courtyard wall. In mid-August 2000, when Hu was building the north and south courtyard walls, he moved eastward and occupied half a meter of the homestead obtained by Niu. After Niu found out, he stopped him, but Hu refused to listen to the advice and still built the courtyard wall.Niu sued the court on the grounds that Hu had violated his land use right, requesting to remove the obstruction.Hu claimed that Article 8 of the County Government’s “Notice on Carrying out Land Certificate Inspection Work” issued on March 2000, 3 stipulated: “Any unit or individual that has received a land certificate printed by the former State Bureau of Land Administration shall hold a land certificate. Certificates and related documents, go to the land management department for land certificate inspection. If the inspection is qualified, a new version of the land certificate with a unified number by the Ministry of Land and Resources will be issued, and the original land certificate will be taken back by the land management department. The land management department shall take it back, and the party concerned shall re-issue the new version of the land certificate after completing the relevant procedures.” Article 31 stipulates: “Any unit or individual that violates the provisions of this notice and fails to complete the inspection of land certificates within the prescribed time limit shall be ordered by the county land authority to If they fail to do the inspection within the time limit, their original land certificates will be invalidated." The county land management department issued the "Notice on Inspection and Replacement of Land Certificates" and stipulated that the original land use certificate expired on June 2000. It will be invalidated on the 6th.Niu failed to check and replace the certificate on time, and his original land certificate has been invalidated, so the prosecution should be dismissed.

Analysis according to law
Regarding the legality and effectiveness of Niu’s land registration behavior and the original land certificate he held, the author believes that Niu’s claim should be supported and Hu’s infringement of his rights should be excluded. The land certificate should not be confused here. In the relationship with land registration, the land certificate is only regarded as the only legal document to prove the land ownership, while the evidentiary effect of the register is ignored.

Article 3 of the "Regulations for the Implementation of the Land Administration Law" stipulates that "the state implements the land registration and certification system in accordance with the law. Land ownership and land use rights registered in accordance with the law are protected by law, and no unit or individual may infringe." Land registration is the legal right to land rights The method of publicity, simply put, is to register and issue certificates for land, that is, to register first and then to issue certificates.The publicity principle in property right is a basic principle in property law.The so-called principle of publicity means that the change of real rights must be displayed in an objective and identifiable way, so as to obtain the effective principle recognized by society and law.In the acquisition and change of real rights with land as the subject matter, registration shall be required to take effect in the real right law.After registration, the rights of the subject of rights are determined according to the provisions of relevant laws.The act of land registration is not only a kind of recognition, but also a kind of proof, which has a kind of proof, presumption and publicity to the public.Therefore, the confirmation of land ownership must be based on the records in the register.

According to the current land registration system, the purpose of issuing land certificates is to ensure the order and safety of land registration activities.It first proves that the act of registration has been completed.After completing the land registration affairs, the registration authority issues the land certificate to the obligee, indicating that the registration authority has completed the corresponding land registration based on the facts, laws and the application of the parties.Secondly, it is conducive to ensuring the safety of registration activities.Because the land ownership is based on the records in the real estate registration book, which is recorded and kept by the registration authority and is not under the control of the obligee, if the registration authority or its staff alter the contents of the registration book without authorization, Rights holders are in danger of losing their rights.In order to prevent this from happening, the registration authority must issue a land certificate to the obligee after the land registration, which records the same content as the registration book.If it is later discovered that there are discrepancies between the record in the register book and the land certificate, the obligee can use the record in the land certificate to confront the registration authority, requesting the registration authority to restore the original record and assume responsibility.As a certificate, the land certificate can prove the legal fact of who the land rights belong to, but its probative force is based on the consistency between the records on it and the records in the register.If it leaves the land register or is inconsistent with the records in the register, the land certificate loses its power to prove the ownership of the land rights, and can only become a proof document for requesting the registration authority to confirm the title.If there is no change in the register, any single change in the land certificate itself will not have the effect of property law.For example, when land is assigned or transferred, the delivery of the land certificate does not produce the effect of the transfer of land rights, and the transferee of the land certificate cannot claim that he has obtained the rights to the land on the grounds that he has obtained the transferor's land certificate. After the land certificate is lost, the land obligee does not lose the land rights, and the obligee can claim and exercise the rights according to the records in the register.And may require the registration authority to reissue the land certificate according to the records in the register.It can be seen that the land certificate cannot be separated from the record in the register to play its role of proof.

To sum up, Niu's determination of the ownership of the land should be based on the content recorded in the land registration, not just based on whether he has the land certificate as the only legal evidence.Although Niu failed to check and issue a new certificate in a timely manner, his original land certificate was declared invalid, but the original land certificate was only a written proof of legal facts, and being declared invalid did not mean that he had obtained the homestead according to law. On the contrary, the original certificate about the location, area and location of the land and the contents of the register corroborate each other, further clarifying Niu's ownership of the land.Therefore, in the trial of this case, the rights recorded in the register should be used as legal and valid evidence to protect Niu's rights from infringement according to law.

tips

How do rural residents obtain the right to use homesteads?We can learn about the general procedures for the right to use the homestead through the Instructions for Registration and Issuance of the Right to Use the Right to Use the Rural Homestead in a certain place:
[-]. Working procedures:
Inspection - receipt - on-site verification - form filling - approval - certificate making - certificate issuance
[-]. Documents to be submitted:

1. Personal application;

2. Village committee certificate;
3. Certificate from the township government;

4. The old homestead registration card;
5. The old construction land use certificate;

6. The buyer's household registration booklet, deed certificate and seller's guarantee letter should also be submitted for buying and selling houses;
7. Issues involving demolition should also be submitted to the District State-owned Assets and Housing Management Bureau Land Division issued by the approval of demolition and relocation.

[-]. Working time limit

The registration of real estate property rights and ownership, and the source of real estate mortgage property rights are clear and legal, the documents are complete, the verification is consistent with the actual situation, and there is no dispute. From the date of receipt of all registration documents, the process will be completed within 15 working days.

18. How to judge the validity of the housing inspection report?

The plaintiff, Zhang, claimed that on May 1999, 5, he signed the "A Garden Villa Reservation Agreement" with the defendant in Hong Kong, and paid a deposit of US$15.On November 44256 of the same year, the two parties signed the "Contract on Pre-sale of Commodity Houses for Export", stipulating that the plaintiff would pre-purchase a house from the defendant, with a construction area of ​​11 square meters and a garden area of ​​1 square meters, at a total price of US$325.61; If the house is delivered to the plaintiff for use before May 390.01, the plaintiff shall go through the formalities of handing over the house for use within 445968 days after the defendant sends a written notice. If the defendant delays the delivery for more than six months, the plaintiff has the right to terminate the contract.The contract also stipulated that the house delivered by the defendant must be inspected by the S City Construction Engineering Quality Supervision and Inspection Station, and meet the decoration standards and equipment standards stipulated in Annex IV of the contract.The pre-sale contract was notarized by the Notary Office of S City on December 2000, 5. On July 31, 1999, the plaintiff received the notice of delivery and use issued by the defendant on June 12 of the same year, informing him to go through the formalities of taking over the building, sign the "Contract for the Sale of Commercial Houses for Export" and pay the balance of the house price.Because the house delivered by the defendant did not meet the decoration standards stipulated in the contract, and the quality of the decoration was extremely poor, the plaintiff refused to accept it and demanded renovation.The plaintiff paid off all the house payments on April 10, 2000, but refused to sign the "Contract for the Sale of Commodity Houses for Export" and related documents with the defendant.Later, the plaintiff entrusted the Building Quality Inspection Station of the Housing and Architectural Design Institute of S City to inspect the house. In December 7, the inspection station issued a test report, and believed that the house had serious quality problems.The plaintiff believes that the house he purchased is a fully furnished commercial house for export, and the quality of the existing house decoration has serious problems, which constitutes a serious breach of contract. Therefore, he filed a lawsuit and requested a judgment: 17. Termination of the "Export Commercial House Pre-sale Contract" signed by the plaintiff and the defendant ; 6. The defendant returned the purchase price of USD 30 and paid interest of USD 2001; 4. The defendant was responsible for the housing quality inspection fee of RMB 5; 2004. The litigation costs were borne by the defendant.

Analysis according to law
In this case, the court confirmed the following evidence that both parties had no objection to: the “Reservation Agreement for a Garden Villa”, the “Pre-sale Contract for Commercial Houses for Export in City S” provided by the plaintiff, and the purchase invoice; the notice of delivery and use provided by the defendant, The unit project quality comprehensive evaluation form of the construction project supervision station in a certain district of city S, the certificate issued by the construction project quality supervision station of S city on August 1999, 8, and the commercial housing registration certificate.

The focus of the dispute between the two parties in this case is whether the quality of the house decoration delivered by the defendant to the plaintiff complies with the contract standards and whether the house quality inspection obtained by the defendant complies with the legal requirements.

A legally established contract shall be protected by law.The "Contract for the Pre-sale of Commodity Houses for Export" signed by the plaintiff and the defendant is the true intention of the two parties, it has also been notarized by the notary office, and it complies with the law. Therefore, the contract is legal and valid, and both parties should perform according to the agreement.The defendant obtained the quality inspection from the quality supervision station within the time limit stipulated in the contract. The quality of the house was qualified, and the plaintiff was notified of moving in as agreed. Therefore, the defendant has fulfilled its obligations stipulated in the contract.Although the two parties agreed in the contract that the house delivered by the defendant should be inspected by the Construction Engineering Quality Supervision and Inspection Station of S City, in practice, the General Construction Engineering Supervision Station of a certain district has the right to conduct quality inspection of the object of this case and issue an inspection report. The project quality inspection sheet provided by the defendant should be recognized.Nearly five years after the delivery date, the plaintiff unilaterally entrusted the quality inspection department to inspect the quality of the house, and the inspection report issued by the plaintiff could not be compared with the inspection report issued by the General Construction Engineering Supervision Station of a certain district, so the quality inspection provided by the plaintiff The test report is not recognized by the court.Although Annex IV of the contract signed by the two parties agreed on the relevant decoration standards and equipment standards, it did not make detailed agreements on the relevant decoration and equipment. Therefore, the plaintiff claimed that the house delivered by the defendant did not meet the decoration standards and equipment stipulated in the contract. The standards and the delivery conditions stipulated by the state are not based enough.

tips

The inspection of whether the house meets the comprehensive acceptance conditions.The conditions for comprehensive acceptance must be met in accordance with the normative documents of local governments or government departments.

19. In the face of water leakage in the house, how should the owner pay attention to preserving evidence?
Due to technical quality problems of construction in a community, the roofs of 30 houses leaked water in a large area during the warranty period.Before the establishment of the Owners Committee, the developer had already repaired 22 of them, and the remaining 8 buildings were not repaired in time.Now the developer believes that the warranty period has expired, and the owners' committee has been established, and the remaining 8 houses should be repaired with maintenance funds, and the repairs should also be taken care of by the owners' committee.After the owners' committee reported to the owners' meeting, the owners' meeting believed that the developer should continue to maintain and bear the cost.However, the owner of the community and the property committee could not provide effective evidence to prove that the water leakage occurred during the warranty period.

Analysis according to law
The water leakage of the house occurred during the warranty period, and the owner borne half of the maintenance cost because he did not keep the evidence.For this reason, readers should be reminded that the cost of repairing roof leaks is paid by the maintenance funds or borne by the developer. The "watershed" is the warranty period.The owner should pay attention to keeping the evidence that the water leakage occurred during the warranty period, so as to prove it easily, and pay attention to the statute of limitations.

Roof leaks are a chronic problem that is often difficult to cure.During the warranty period, the developer is responsible for the maintenance, and the maintenance funds will generally "pay" when the warranty expires.Therefore, if the owner or the owner's committee finds water seepage, water leakage or other quality problems, they should negotiate with the developer in time, and do not delay the problems that occur during the warranty period to the outside of the warranty period, so as to avoid causing greater losses to themselves.

The owner needs to prove that the house leaked during the warranty period, and asked the developer to repair it without completely solving the problem.You can also entrust a house inspection agency to conduct a special appraisal to prove that the water leakage is caused by the quality of the house structure, which is not limited by the warranty period.Once the owner cannot prove that the leakage is caused by the quality of the waterproofing project, nor can it prove that it occurred during the warranty period, the developer often does not assume the responsibility for maintenance and needs to use maintenance funds to repair the house.

tips

Article 40 of the State Council's "Construction Project Quality Management Regulations" stipulates: "Under normal use conditions, the minimum warranty period for construction projects is:

([-]) For infrastructure engineering, foundation engineering and main structure engineering of housing construction, the reasonable service life of the project stipulated in the design documents:

(5) [-] years for roof waterproofing projects, toilets, rooms and external walls that require waterproofing;
(2) Heating and cooling systems, which are two heating periods and cooling periods;

(2) [-] years for electrical pipelines, water supply and drainage pipelines, equipment installation and decoration projects.

The warranty period of other items shall be agreed upon by the contracting party and the contractor.

The warranty period of a construction project shall be calculated from the date of completion and acceptance. "

20. There are defects in the quality of the house, how can the owner provide evidence to protect his rights?
Liang signed a commercial housing sales contract with a real estate company.According to the contract, Liang bought a set of commercial housing, and the developer promised to deliver high-quality and high-standard commercial housing to the owner by the end of the year.At the end of the year, the developers delivered the houses on schedule.However, during the acceptance process, Liang found that there were cracks through the wall, roof, and ground of the house, and there were obvious traces of repairs in many places.Liang believed that the commercial housing delivered by the developer had serious quality problems, so he refused to accept the house key and sued the court.

After the court accepted the case, it entrusted a professional organization to conduct a house inspection for the cracks in the wall of the house in dispute.The conclusion is: the cracks are caused by improper treatment of temperature cracks and construction joints and improper construction of filling walls, non-structural cracks, and will not affect the safety and reliability of the house.

Analysis according to law
In this case, when Liang discovered the quality defects of the house, although he rejected the house on the grounds that the delivery was unqualified, he did not obtain corresponding strong evidence, nor did he ask the developer or apply for a house quality appraisal by himself.This is the direct reason why Liang finally assumed the risk of losing the lawsuit.

As a special commodity, commercial housing is of great value, and the links involved include not only wall structures, doors and windows, but also indoor pipelines, hardware, and even decoration parts.Therefore, once there is a quality defect in the house, the owner should notify the developer in time, and ask the developer to bear corresponding responsibilities through reasonable channels, so as to maximize the protection of their legitimate rights and interests.Cracks in the wall, as a persistent problem in the delivery process, can be used as a reason for the owner to refuse to accept the delivery of the house?This mainly depends on the nature of the crack.Generally, cracks caused by expansion and contraction of housing materials, temperature changes, etc. are allowed to exist, and are not considered serious quality problems. They can be made up by the developer's repair or the owner's own painting when decorating.These cracks can also be found intuitively by the owner when the house is delivered.As for the deep penetration cracks in the wall caused by construction quality problems and the wall cracks caused by geological subsidence, these cannot be judged by the owner with the naked eye and common knowledge, and must be tested by the housing quality inspection department.When the cracks endanger the building structure and living safety, these cracks constitute a fundamental quality problem, and the developer must take relevant remedial measures or give the owner to replace the house to solve it.At this time, the owner has the right to refuse to accept the delivery of the house.Of course, for the owner, if cracks are found in the wall when people live in it, if they apply for a house safety appraisal in a hurry, in addition to paying a large amount of appraisal fees in advance, they also have to bear the responsibility for overdue house collection and the risk of appraisal fees caused by it.

In the Jianzhi [2004] No. 18 "Several Opinions on Strengthening the Quality Management of Residential Projects" issued by the Ministry of Construction, the developer's responsibility for quality maintenance has been redefined. The specific content of check-out and warranty due to project quality reasons, as well as the method of warranty compensation and other related clauses. If complaints about the quality of residential projects occur during the warranty period, the development company shall be responsible for ascertaining the responsibility and organizing the responsible party to solve the quality problem. Temporarily unable If the responsibility is implemented, the development company should also solve it first, and the responsible party will bear the relevant expenses after the cause of the quality problem is found out.”

tips

When cracks appear during the delivery of the house, the owner should first check the wall structure, observe the direction and distribution of cracks, and judge whether the cracks are normal expansion joints based on the crack depth.Secondly, in the absence of self-judgment, the owner can ask the developer to provide written proof materials and quality inspection reports about cracks in the wall.It bears the burden of proof of quality.And in the process of negotiating with the developer, it is necessary to always do a good job of fixing and preserving evidence, so as to prevent being in a disadvantageous position in litigation or negotiation.

(End of this chapter)