Case Background

Thirty years ago, Mr. De learned of newly built houses on a hillside in a nearby city. The tranquil environment and close proximity to the urban area excited him, so he eagerly purchased a house from the developer, Mr. Yi, and settled there, building a family. However, these houses never obtained a usage permit. Thirty years later, Mr. De's family suddenly received a notice of litigation from the new landowner, demanding that they demolish the house and return the land. It turned out that Mr. Yi, due to massive debts, had mortgaged the land the house was located, and now the land had a new owner. Mr. De's family found themselves in a real estate dispute, and in desperation, they came to our office for help.

Our Practical Experience

What rights did Mr. De purchase without a usage permit for the house?

Given that property ownership in our country is separated into land and buildings, in this case, Mr. De initially only bought the house without buying the land. Without a usage permit, the house is considered an "illegal construction" or "unauthorized building." Due to economic considerations, the Supreme Court has recognized that illegal constructions can be traded, but what is traded is not "ownership" but a right known as "factual disposal rights."

Can the new landowner claim to be the new owner and sue for the demolition of the house and return of the land?

1. Since Mr. De originally bought the house from Mr. Yi, and Mr. Yi was the landowner, legally, Mr. De had a right to use the land. However, if the landowner changes, whether this right still exists is questionable.

2. To prevent the demolition of a well-constructed house due to a change in land ownership, which is detrimental to economic development, Article 425-1 of the Civil Code stipulates, "When the land and the building on it belong to the same owner, and the ownership of the land or the building is transferred to another person, or when the land and the building are transferred to different persons simultaneously or successively, it is presumed that there is a lease relationship between the land transferee and the building transferee within the period the building can be used." This provision is also applicable to situations involving factual disposal rights.

3. In compliance with the legal provisions, even if Mr. Yi transfers the land to another person or it is auctioned off, Mr. De's family might still have a legal right to use the land against the new owner. Whether the conditions are met will require a lawyer to organize and assess the evidence and engage in legal arguments against the new landowner's claims.

[Continue reading：What to Do if Land is Occupied for a Long Time?]