What if the owner of the illegal building does not agree to the demolition

If the owner of the illegal building does not agree to the demolition, he may apply for compulsory demolition. This is prescribed by law.

Illegal construction refers to the construction of houses and facilities outside the planning area without obtaining the planning permit for the proposed project (the original site and site selection opinion), and the construction of houses and facilities in violation of the provisions of the Land Management Law, the Urban and Rural Planning Law, the Regulations on the Planning and Construction Administration of Villages and Market Towns and other relevant laws and regulations.

Illegal buildings have the characteristics of encroaching on safe passages and illegally occupying cultivated land, affecting urban public space, damaging the ecological environment, etc., and many illegal buildings are still hidden in legal buildings. Illegal buildings damage the credibility of the city, destroy the urban landscape, restrict the healthy development of the city and the implementation of urban and rural planning, and also affect the future development of the city.

The state stipulates that not only the illegal building shall be demolished, but the party involved in the illegal construction shall also bear all the costs incurred in demolishing the illegal building.

On May 27, 2020, the Ministry of Natural Resources recently issued the "Notice on Strengthening the Supervision and Management of Land and Spatial Planning", which requires standardized planning preparation and approval, strict management of planning permits, implementation of full-cycle management of planning, and "zero tolerance" for new illegal construction.

If the owner of the illegal building does not agree to the demolition, the owner of the illegal building can be issued a notice of the demolition deadline. The number of days within which the illegal building should be demolished proactively. If you meet with the owner after the expiration date and do not take the initiative to demolish the illegal building, you can organize personnel to forcibly demolish it in accordance with the relevant laws.

If it is indeed an illegal building, it can be implemented by the local urban construction management department, and if the owner does not agree, the urban management department can pass the first execution notice and not demolish it when it expires, and it will be forced to be demolished by administrative law enforcement.

If the administrative law enforcement is not effective, it can be appealed.

If the owner of the illegal building does not agree to the demolition, then it is only forced eviction, because you are an illegal building, and it does not meet the requirements, so there is only compulsory enforcement.

If you can't do the work, you will be forced to demolish it.

Legal analysis: illegal buildings can be demolished in a legal way after forced demolition and then erected, because according to the clear provisions of our national law, if there are illegal buildings, then they can be required to be demolished indirectly, and they can be demolished in a certain amount if they are not demolished. The people of the township and town where the illegal building is located shall report the relevant reasons for the illegal building to the District Construction Bureau, and the District Construction Bureau shall make an administrative penalty decision if it meets the administrative penalty after review.

Legal basis: Article 78 of the Land Management Law of the People's Republic of China Where rural villagers illegally occupy land to build houses without approval or by fraudulent means to obtain approval, the competent departments of agriculture and rural affairs of the people at or above the county level shall order them to return the illegally occupied land and demolish the newly built houses on the illegally occupied land within a time limit. If the standards set by provinces, autonomous regions, and municipalities directly under the Central Government are exceeded, the excess land occupied shall be punished as illegal land occupation.

Article 40 of the Urban and Rural Planning Law of the People's Republic of China Where buildings, structures, roads, pipelines and other engineering construction are carried out in the urban or town planning area, the construction unit or individual shall apply to the urban and rural planning department of the city or county or the town of the town determined by the people of the province, autonomous region or municipality directly under the Central Government for a construction project planning permit. To apply for a construction project planning permit, the relevant supporting documents for the use of land, construction engineering design plans and other materials shall be submitted. For construction projects that require the construction unit to prepare a detailed construction plan, a detailed construction plan shall also be submitted.

For those who meet the regulatory detailed planning and planning conditions, the urban and rural planning departments of the city and county or the town people of the provinces, autonomous regions and municipalities directly under the Central Government shall issue construction project planning permits. The urban and rural planning departments of the people's governments of cities and counties or the people of towns and towns determined by the people's governments of provinces, autonomous regions and municipalities directly under the Central Government shall, in accordance with the law, publish the general plans of the detailed construction plans and construction engineering design plans that have been approved.

Legal Analysis: The only house of ordinary residents can not be demolished. Due to historical reasons, after such a long time, some houses will not meet the standards for the area of one house and homestead, but it is no problem to obtain approval when switching to the previous construction, so such a situation will generally not be demolished.

Normally, as long as it is an illegal building, it must be demolished, because in essence, the illegal building is built privately in violation of national laws and regulations, and it must be demolished because it is illegal.

Legal basis: "Urban and Rural Planning Law of the People's Republic of China" Article 66 If the construction unit or individual has any of the following acts, the competent department of urban and rural planning of the city or county shall order it to be demolished within a time limit, and may be fined less than one time the cost of the temporary construction project

1) Temporary construction without approval;

2) Failure to carry out temporary construction in accordance with the approved content;

3) Temporary buildings and structures are not demolished beyond the approved time limit.

Legal analysis: The developer's illegal demolition of the owner is dealt with as follows: 1. The house has not been delivered, and the developer cannot continue to perform its contractual obligations in accordance with the contract, and the developer must assume all responsibilities and ask the developer for compensation.

2. If the house has been delivered, it is necessary to verify the developer's breach of contract with the relevant departments, collect materials as much as possible, and use strong evidence to prove the developer's breach of contract.

Legal basis: Article 566 of the Civil Code of the People's Republic of China After the contract is terminated, if it has not been performed, the performance shall be terminated; If it has already been performed, according to the performance and the nature of the contract, the parties may request restitution to the original state or take other remedial measures of filial piety, and have the right to request compensation for losses. If the contract is terminated due to breach of contract, the person with the right to terminate may request the breaching party to bear the liability for breach of contract, unless otherwise agreed by the parties.

After the termination of the main contract, the guarantor shall still bear the guarantee liability for the civil liability to the debtor, unless otherwise agreed in the guarantee contract.

Article 578:Where one of the parties expressly states or shows by its own conduct that it will not perform its contractual obligations, the other party may request that it bear liability for breach of contract before the expiration of the performance period.

1. If only one is demolished for the same illegal construction, the parties can apply to the court. 2. If it is determined that the illegal building has been forcibly demolished, the person being demolished may apply to the administrative organ for administrative reconsideration or apply to the people's court for administrative litigation, but it should be noted that it is generally not allowed to directly sue the people's court in case of difficulty, and it is necessary to apply to the administrative organ for reconsideration first, and if he is still not satisfied with the result of the administrative reconsideration, he will request judicial assistance.

Article 65 of the Urban and Rural Planning Law of the People's Republic of China in the township or village planning area has not obtained the construction planning permit of Chihail Village in accordance with the law or has not been constructed in accordance with the provisions of the rural construction planning permit, the people of the township and Zaofan Town shall order the construction to stop and make corrections within a time limit; If it is not corrected within the time limit, it may be dismantled.

1. Under what circumstances can the illegal construction not be demolished.

1. The following illegal buildings shall not be demolished

1) Affecting the safety of the main structure of buildings and structures;

2) the existing technical conditions can not be dismantled;

3) After demolition, it may cause significant damage to the public interest;

4) If the illegal building becomes a legal building through correction or supplementary procedures, the building involved shall not be demolished.

2. Legal basis: Article 64 of the Urban and Rural Planning Law of the People's Republic of China.

If the construction project planning permit is not obtained or the construction is not carried out in accordance with the provisions of the construction project planning permit, the local people's urban and rural planning department at or above the county level shall order the construction to be stopped; If corrective measures can still be taken to eliminate the impact on the implementation of the plan, the correction shall be made within a time limit, and a fine of not less than 5% but not more than 10% of the construction project cost shall be imposed; If it is not possible to take corrective measures to eliminate the impact, it shall be demolished within a time limit, and if it cannot be demolished, the physical object shall be confiscated or the illegal income shall be punished, and a fine of less than 10% of the construction project cost may be imposed concurrently.

2. What are the criteria for identifying illegal construction?

1. Buildings built without applying or applying for approval, and without obtaining a construction land planning permit and a construction project planning permit;

2. Buildings built without authorization to change the provisions of the construction project planning permit;

3. Buildings built without authorization that have changed the nature of use.

Legal analysis: If the owner of the illegal building does not agree to the demolition, the local people at or above the county level where the construction project is located can instruct the relevant departments to take measures such as sealing the construction site and compulsory demolition.

Legal basis: Urban and Rural Planning Law of the People's Republic of China

Article 64 Where a construction project planning permit has not been obtained or construction is not carried out in accordance with the provisions of the construction project planning permit, the competent department of urban and rural planning of the local people's government at or above the county level shall order the construction to be stopped; If corrective measures can still be taken to eliminate the impact on the implementation of the plan, it shall be corrected within a time limit, and a fine of not less than 5% but not more than 100% of the construction project cost shall be imposed; If it is not possible to take corrective measures to eliminate the impact, it shall be demolished within a time limit, and if it cannot be demolished, the physical object or illegal income shall be confiscated, and a fine of less than 10% of the construction project cost may be imposed concurrently.

Article 68 After the competent department of urban and rural planning makes a decision to order the cessation of construction or demolition within a time limit, if the parties do not stop the construction or do not dismantle within the time limit, the local people at or above the county level where the construction project is located may instruct the relevant departments to take measures such as harvesting and sealing the construction site and compulsory demolition.

If the offender does not agree to the forced demolition, he may appeal to the defendant, the private prosecutor and their statutory ** person, who are not satisfied with the judgment or ruling of the first instance of the local people's court at all levels, and have the right to appeal to the people's court at the next higher level in writing or orally. In accordance with Article 44 of the Administrative Coercion Law of the People's Republic of China.

Where illegal buildings, structures, facilities, and so forth need to be compulsorily demolished, the administrative organ shall make a public announcement, and the parties concerned shall demolish them within a set period of time. If the parties do not apply for administrative reconsideration or file an administrative lawsuit within the statutory time limit, and do not demolish it, the administrative organ may compel the demolition in accordance with law.

1. The provisions of the "Regulations on the Administration of Urban Housing Demolition" on demolition.

Article 6 The demolition and relocation of houses can only be carried out after the units that are demolished and relocated have obtained the permit for the demolition and relocation of the houses.

Article 7 Those who apply for a house demolition permit shall submit the following information to the people's housing demolition management department of the city or county where the house is located:

1) Approval documents for construction projects;

B) construction land planning permits;

C) State-owned land use right approval documents;

4) Demolition plan and demolition plan;

5) Proof of demolition compensation and resettlement funds issued by the financial institution handling the deposit business.

Municipal and county people's housing demolition management departments shall, within 30 days from the date of receipt of the application, review the application; After review, if the conditions are met, a house demolition permit will be issued.

Article 8 The housing demolition management department shall publish the demolition personnel, the scope of the demolition, the time limit for demolition, and other matters specified in the housing demolition permit in the form of a house demolition announcement at the same time as issuing the house demolition permit.

The housing demolition management department and the demolition person shall promptly do a good job of publicity and explanation to the person being demolished.

Article 9 The demolition and relocation personnel shall carry out the demolition and relocation of the house within the scope and time limit of the demolition and relocation determined in the house demolition permit.

If it is necessary to extend the demolition period, the demolition person shall submit an application for extension of demolition to the housing demolition management department 15 days before the expiration of the demolition period; The housing demolition management department shall reply within 10 days from the date of receipt of the application for postponement of demolition.

Article 10 The demolition and relocation personnel may carry out the demolition and relocation on their own, or they may entrust a unit with the qualifications to carry out the demolition and relocation.

The housing demolition management department shall not be the demolition person and shall not accept the demolition commission.

Article 11 Where a demolition party entrusts demolition and relocation, it shall issue a power of attorney to the entrusted demolition unit and conclude a demolition entrustment contract. The demolition party shall, within 15 days from the date of the conclusion of the demolition entrustment contract, report the demolition entrustment contract to the housing demolition management department for the record.

The entrusted demolition unit shall not transfer the demolition business.

The owner does not have the right to demolish the illegal building, and the demolition is generally carried out by the administrative department. If there is an illegal construction in the community, it can be reported to the relevant administrative department in time.

1. How to file a case for demolition of illegal buildings.

Case filing is an activity in which the law enforcement department decides to investigate and deal with it as an administrative case when it believes that there is a violation of the law and needs to pursue legal responsibility after discovering or receiving complaints or reports and other facts or materials. In this procedure, it is necessary to pay attention to which administrative organs have the right to file a case and investigate illegal buildings

One is the planning bureau or the planning commission. This is a statutory department, and it is responsible for illegal buildings in the city.

The second is the Comprehensive Administrative Law Enforcement Bureau of Urban Management. That is, the famous urban management, whether the urban management has the right to manage illegal buildings, mainly depends on whether it is authorized by the provincial government, such as Beijing, the urban management department is authorized by the Beijing Municipal Government, so the famous illegal building of Renji Villa is required by the urban management to demolish itself within a time limit.

The third is the people of townships and towns. The scope of its law enforcement is within the planning areas of townships and villages, and simply put, it is responsible for the management of illegal buildings in rural areas.

Except for the above-mentioned departments, no other department has the right to investigate and deal with illegal construction. In practice, there are land bureaus, land institutes, housing and urban-rural bureaus, housing management bureaus, etc., to investigate and deal with illegal buildings, which is wrong.

2. How to investigate after the demolition of illegal buildings is filed.

First, there shall be no less than two investigators.

Second, investigators should take the initiative to show their law enforcement credentials. There are two roles: first, investigators must be qualified to enforce the law; Second, it is necessary to prevent people who do not have a record of law enforcement qualifications from impersonating law enforcement personnel to carry out law enforcement activities.

In practice, law enforcement personnel in many places often do not show their law enforcement certificates when conducting investigations. In the face of this situation, it is recommended that the punished person can take the initiative to ask them to show their documents and record the relevant information on their documents (the more important information is name, number, etc.), so as to facilitate the protection of rights in the future.

Third, be cautious when being questioned and when signing the transcript. First, don't be afraid, the vast majority of demolition households are scared to death when they see the ** personnel asking or investigating, which is very important, because mistakes are often made in fear and fear. In practice, some law enforcement officers will use coercion and inducement to make you say something that is convenient for them to investigate, such as if you don't give an honest account, you will be dealt with strictly, and so on.

Third, we should be cautious in signing the record.