What to Do if Land is Occupied for a Long Time?-

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What to Do if Land is Occupied for a Long Time?

拆屋還地

When facing the thorny issue of land being illegally occupied, many landowners may feel helpless and confused. Imagine one day you suddenly discover that a piece of land that originally belonged to you has been quietly encroached upon, and there might even be buildings constructed on it.This situation is not only shocking but also brings a series of legal issues and disputes.

What happens when land is occupied by someone for a long period of time?

Land is used or occupied without the permission of the landowner, which is generally considered "unauthorized possession" in legal terms. Unauthorized possession means someone occupies another person's property without legal right or reasonable basis, treating it as their own.

The legal implications mainly manifest in several aspects:

Infringement of property rights：As real estate, land is a significant property right. When land is illegally occupied, it actually infringes on the property rights of the landowner.
Legal disputes：The occupation of land often leads to legal disputes. The landowner may need to resort to legal means to restore their rights, including initiating civil litigation against the illegal occupier for eviction and compensation for related losses.
Risk of adverse possession： If the land is occupied for a certain period, the occupier might even become the legal owner through 'adverse possession'. This means if the landowner does not act in time, they may lose ownership of the land.

When land occupation is discovered, the landowner should take action promptly. If the occupier is unwilling to vacate voluntarily, it might be necessary to resolve the issue through legal means, including mediation, sending legal notices as warnings, and not limited to litigation. Seeking the assistance of a professional lawyer is also crucial in these processes to ensure that legal rights are effectively upheld.

What is "Dismantling Houses to Return Land"?

"Dismantling Houses to Return Land" is based on Article 767 of the Civil Code, which states that the owner can request the return of their property from those who possess or usurp it without right. The owner can also demand the removal of any obstruction to their property rights, and if there's a threat to these rights, they can request preventative measures. These provisions apply to property rights other than ownership as well.

In simple terms, if land is occupied without right and illegal constructions like houses or other buildings are erected on it, the landowner might need to initiate a "Dismantling Houses to Return Land" lawsuit. This term refers to the court-ordered dismantling of illegally constructed buildings to restore the land to its original state or to protect the rights of the landowner.

For example, if someone builds a house on someone else's unused land without the landowner's permission, this constitutes unauthorized possession. In such cases, the landowner can file a lawsuit to demand the dismantling of the house and the return of the land. After the court's judgment, if it is determined that the existence of the building infringes on the rights of the landowner, the court will order the demolition of the building and return the land to its rightful owner.

The Process of Dismantling Houses to Return Land

The actual process of "Dismantling Houses to Return Land" is organized as follows:

Evidence Collection: Before initiating any lawsuit, the collection of evidence is crucial. This is to prove the infringement by the illegal occupant. It may also involve requesting land measurement by land administration agencies to confirm the extent of rights.
Sending Warning Letters: Before deciding to litigate, it's advisable to attempt mediation with the other party. If the other party remains passive, a certified letter or a lawyer's letter can be sent as a warning, demanding active cooperation.
Filing a Lawsuit: If the case cannot be resolved through mediation, a complaint can be drafted and mailed or personally delivered to the court to initiate legal proceedings, and then wait for the subsequent case hearing.
Enforcing the Judgment: After winning the lawsuit, the landowner can use the judgment (execution title) to apply for compulsory execution at the execution court. Upon accepting the case, the execution court can set a deadline for the debtor to comply based on the circumstances of the case.

What should one do if, after living in a house for many years, they are suddenly sued for dismantling the house to return the land?

Case Background

Mr. A's grandfather, Mr. B, rented a piece of land from Ms. C's grandmother, Ms. D (the original landowner), around the 1960s to build a house for personal use. At that time, due to the simplicity of customs and less advanced land measurement techniques, Mr. B and Ms. D did not sign a formal lease agreement specifying the exact boundaries of the rented land. They simply agreed that the land was for building a house. Ms. D, living nearby, could easily see any construction or modifications made by Mr. B. This harmonious relationship continued for decades.

However, after the deaths of Mr. B and Ms. D, the lease relationship was inherited by Mr. A and Ms. C. Unfortunately, the neighborly bond weakened over generations. Ms. C claimed that Mr. B's additions and alterations to the house on the land exceeded the originally rented area and demanded Mr. A dismantle these parts. Mr. A argued that the original lease was for building a house, without specific boundaries, and early wooden structures often needed expansions or modifications for usability, thus disagreeing with Ms. C's claim. Unable to reach a consensus, Ms. C sued for dismantling the house to return the land, and Mr. A sought legal assistance.

According to Article 767 of the Civil Code: "The owner can demand the return of their property from those who possess or usurp it without right..." Ms. C's lawsuit claimed that the additions and alterations were not within the original rental area, hence not legally justified, and demanded dismantling based on the said article.

Local Court: Victory in the Lawsuit

Mr. A's lawyer argued that the additions and alterations, as verified by aerial photographs, were built 30-40 years ago. Ms. C, as the adjacent original landowner, would have been clearly aware of these changes and continued to collect rent without objection, implying her acceptance of the expanded lease area.

After thorough analysis and strategic litigation, Mr. A's lawyer won the case. The court ruled: Considering the long-standing "informal lease" between the parties, Mr. A or his ancestors had the landowner's consent for the use of the land and subsequent modifications. The fact that Mr. A and his ancestors sought permission for "renovations" and continued to pay rent implies that expansions and alterations were unavoidable. Given that the rent collection continued for decades without any disputes about the lease area, it's unreasonable to claim that the lease didn't include the land used for later expansions. Therefore, Ms. C's claim that the expansions were beyond the original lease agreement lacks objective basis and is unsubstantiated.

Common Questions

Q1：How is the cost for dismantling a house to return land calculated?

Court Costs	Court costs are litigation fees charged by the court, generally calculated as the occupied area multiplied by the announced current value of the land. These are initially paid by the plaintiff when filing the lawsuit and are usually borne by the losing party after the judgment is finalized.
Attorney Fees	Different law firms have varying fee standards, so it's recommended to consult directly with a lawyer for a complete assessment. The lawyer can then determine the fees based on the specific circumstances of the case.

Q2：If my land is occupied, can I file criminal charges in addition to civil action?

Occupying someone else's land through illegal or unjustified means can lead to civil issues and may also constitute a violation of Article 320 of the Criminal Code, which addresses the crime of embezzlement.

Article 320 of the Criminal Code states："A person who, with the intent of unlawful possession for themselves or a third party, steals movable property of another, commits the crime of theft and shall be sentenced to imprisonment for not more than five years, detention, or a fine of not more than five hundred thousand dollars. A person who, with the intent of unlawful benefit for themselves or a third party, embezzles immovable property of another, shall be punished according to the provisions of the preceding paragraph. Attempted offenses under the first two paragraphs are punishable."

Reference：民法物權篇章Civil Code: Property Rights Chapter

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