College essay annotated bibliography

November 25 2016

China and the Property Laws

Citizens in China cannot have private ownership of land but can acquire rights that will allow them to use the land for a specified period of time (Harris 94). As per now, citizens can obtain land use rights in urban areas for a maximum of seventy years. Once this time runs out, the land is repossessed by the state or the contract is renewed. Despite the fact that individuals cannot privately own the land, they can own the buildings raised on the land in what is called home ownership. This is basically a situation in which an individual privately owns a building or a home but he does not have the title or ownership of the land that his building is resting on. In simple terms, according to the property laws of China an individual cannot own land, it belongs to the state.

1. The Legal Framework

The Constitution

With respect to the constitution of China, private property is protected by the law. With respect to Article 13 of the constitution, the private property owned by citizens is protected. It is the right of the state to make sure that such property is protected. The constitution acknowledges that there are individuals who legally own private property and it is necessary for this property to be protected.

China makes use of a constitution that was adopted in 1982, and since then, it has undergone four major amendments; 1988, 1993, 1999, and 2004. Out of all the four amendments, it was the 2004 one that recognized private property and declared it as constitutional. This basically implies that before 2004, the constitution of China did not recognize the private land, all land was considered to be owned by the state. This amendment brought a sigh of relief to private land-owners because their property was legally recognized by the law and the constitution went ahead to provide legal protection for such property. Citizens were given the right to lawfully own land (Peter 153).

The Property Rights Law

The Property Rights Law was enacted in 2007 after legislative debates that spanned for more than one decade. The law was made effective from October 1 of the same year and basically contained details of property rights protection, this protection covered movable property as well as real estate. This law primarily focused on the establishment and transfers as well as other details that are related to property ownership rights. Similarly, the law addressed issues to do with the registration as well as delivery of property rights involving movable and real estate property.

Real Property in Urban Areas

These laws are concerned with real property in urban areas with respect to the rights that are related to land-use as well as ownership. Property in urban areas is very valuable and this creates a lot of demand for it. Without proper regulation, it would be difficult to manage such property.

2. Ownership of Land and Houses

Rights to use land

With respect to the constitution of China, land, and other natural resources cannot be privately owned by individuals. Especially in the urban areas, the constitution states that land has to be owned by the state, while in rural areas, the ownership of land can be entitled to the state of local collectives. Despite this, the constitution allows the people to use the land after obtaining permission from the state. The land-use rights state that individual can use and benefit from a given piece of land for a specific period of time (Albert 320).

Terms With Respect to Land Use Rights

With respect to the prevailing rules as defined by the State Council, the maximum term for which land can be utilized for residential purposes is seventy years. In case the land is acquired for industrial purposes, it can be used for a maximum of fifty years. Other purposes for which land can be used for a maximum of fifty years include science, education, culture, physical education, and public health. For the interest of recreational purposes and commercial tourism, land can be acquired for forty years.

Private Home Ownership

Individuals can have the title of ownership of real estate. This implies that they can own apartments and residential houses such as buildings and other structures on the land. However, they cannot own the land on which the building is constructed. With respect to Article 64 of Property Rights Law, individuals can enjoy the ownership of movable and immovable properties as well as the income that they earn from them.

3. Sale of Private Property

According to the Assignment Regulations, individuals have the right to transfer their right to use land through various ways such as selling, exchanging, or giving it out as a gift. With respect to the Urban Real Estate Law, real estate can be leased, mortgaged, or transferred. When there is a transfer of real estate, ownership as well as the rights to use it are transferred. Should there be any restrictions on the property, the law defines the necessary steps that can be taken to handle the issue. For instance, if the property is priced below the market price, then the state has the right to purchase the ownership rights of such a property. With respect to the Urban Real Estate Law, the transfer of property that is under the following conditions is prohibited:

· The land-use rights were obtained through improper means

· The real estate rights are frozen or restricted by the authorities

· The state has claimed the land-use rights

· Property ownership is under dispute

· Improper registration and certification of ownership of the property

It is important to note that when real estate is transferred, the duration for which the new owner is basically the remainder of the time after the subtraction of time used by the original owner from the original time for which the proper was to be used (Peter 57).

4. The Official Registry

According to the Property Rights Law, the registration authorities are responsible for performing the registration of real property; this registration should take place where the property is physically situated. With respect to the Urban Real Estate Law, it is required for land-use rights to be registered with the local authorities. In the case of home ownership, registration needs to be done with the housing authorities of the local government. The law requires that all real property must have proper registration and certification.

In case there is a transfer of real property, it is necessary that the change in ownership is registered with relevant authorities that are concerned with housing issues. When there is a modification of a home ownership certificate, it is also required by the law that the modification of the rights to use the land is registered with the land authorities. Following successful modification, the land authorities can either issue a modified or new certificate of the rights to use the land.

Conclusion

In China, land, as well as other natural resources, are owned by the state. Should an individual need to use such property, he needs to obtain the necessary rights from the relevant authorities that will give him the permission to use the land. Real property is also highly regarded and there various laws that govern how such property might be used or transferred from one user to another (Gebhard & Julius 103).

Works Cited

Albert, H. The Law of Property and the Evolving System of Property Rights in China. London: Routledge, 2011. Print.

Gebhard, M. & Julius, H. The New Chinese Property Rights Law. Columbia Journal of Asian Law, 22(2): 192. 2009. Print.

Harris, D. China’s New Property Law. Seattle: Harris & Moure, 2007. Print.

Peter, C. Property Rights on Imperial China’s Frontiers. UK: Cavendish Publishing, 2004. Print.

Peter, H. Developmental Dilemmas: Land Reform and Institutional Change in China. London: Routledge, 2005. Print.