Analysis of the Four Principles of the Interim Regulations on Real Estate Registration

On November 24, 2014, Premier Li Keqiang of the State Council signed the Interim Regulations on Real Estate Registration (hereinafter referred to as the "Regulations"), which took effect on March 1, 2015. The concept of real estate registration was first formally proposed at the national legal level in the 2007 Property Law. It was not until March 2013, in the Plan for Institutional Reform and Functional Transformation of the State Council, that the establishment of a unified real estate registration system was explicitly put forward. Originally, the plan required the system to be introduced by June 2014. However, before the Third Plenary Session of the 18th Central Committee, in order to balance the relationships among various parties, responsibilities were divided as follows: the Legislative Affairs Office of the State Council was responsible for coordinating the provisions, the Ministry of Housing and Urban-Rural Development was responsible for the registration of houses on state-owned land, and the Ministry of Land and Resources was responsible for the registration of real estate on collective land, mainly including homestead land, forest land, and grassland. Under such circumstances, the Unified Real Estate Registration Regulations involved the amendment of multiple legal provisions, including the Land Administration Law, the Urban Real Estate Administration Law, the Grassland Law, the Forest Law, and the Rural Land Contracting Law. According to experts who participated in the legislative work, although Article 10 of the Property Law had already granted authorization, the Property Law could not authorize administrative regulations to have effect superior to that of laws. Against this backdrop, the Regulations were ultimately issued later than the scheduled time.

The Regulations mainly follow four principles: first, unified standardization, designating a single department responsible for registration and setting uniform requirements for institutional structure, register management, basic procedures, and information sharing and protection. These four principles are respectively reflected in:

Unified department

[1] Article 6: The competent department of land and resources under the State Council is responsible for guiding and supervising nationwide real estate registration work. Local people's governments at or above the county level shall designate a department as the real estate registration institution for their administrative regions, responsible for real estate registration work, and subject to the guidance and supervision of the competent department of real estate registration of the higher-level people's government.

Interpretation:

Compared with the Property Law, the Regulations clearly designate the Ministry of Land and Resources as the unified authority at the national level. However, this unification only exists at the national level; local governments at or above the county level have yet to identify specific agencies. This provision does not specify the particular registration departments for local people's governments at or above the county level. It will only become operational after local implementing rules are issued and competent departments are established. In May 2014, the Ministry of Land and Resources officially established the Real Estate Registration Bureau, tasked with guiding and supervising nationwide real estate registration work, including land registration, housing registration, forestland registration, grassland registration, and sea area registration. In November 2014, the State Commission Office for Public Sector Reform approved the renaming of the China Land and Mineral Resources Legal Affairs Center (the Land Dispute Mediation and Resolution Affairs Center of the Ministry of Land and Resources) to the Real Estate Registration Center of the Ministry of Land and Resources (Legal Affairs Center of the Ministry of Land and Resources), undertaking support work in policies, operations, and technology related to real estate registration, as well as legal affairs work for land and resources. The Guangxi Zhuang Autonomous Region issued the Guangxi Zhuang Autonomous Region Real Estate Registration Work Plan, actively responding to and implementing the initiative.

[3] Unified registers

[4] Article 8: Real estate shall be registered with the real estate unit as the basic unit. Real estate units have unique codes. Real estate registration institutions shall establish unified real estate registers in accordance with the regulations of the competent department of land and resources under the State Council.

Interpretation:

[5] Compared with the Property Law, the Regulations clarify the content of registration registers. Urban real estate management is relatively standardized, but for rural areas in China, due to varying practices in different localities regarding current rural land, some places have already issued certificates, while others have not.

Unified Basic Procedures

Article 14 Where an application is made for registration of immovable property on the basis of a sale, the creation of a mortgage, or any other matter, the application shall be jointly made by both parties. An application may be made by one party alone under any of the following circumstances: (1) the immovable property has not yet been registered and an application is made for initial registration; (2) the right to the immovable property is acquired through inheritance or acceptance of a testamentary gift; (3) the creation, modification, transfer, or extinguishment of a right to immovable property is based on a legal document that has taken effect as rendered by a people's court or an arbitration commission, or a decision that has taken effect as made by a people's government; (4) an application is made for registration of a change because the name or designation or the natural conditions of the right holder have changed; (5) an application is made for deregistration because the immovable property has been lost or the right holder has waived the right to the immovable property; (6) an application is made for rectification registration or objection registration; or (7) any other circumstance under which an application may be made by one party alone as provided by laws or administrative regulations.

Interpretation:

According to Article 28 of the Property Law: where a legal document of a people's court or an arbitration commission, or a expropriation decision of a people's government, etc., leads to the creation, alteration, transfer, or extinguishment of a real right, such effect shall occur when the legal document or the expropriation decision of the people's government, etc., takes effect. The Regulations do not specify which party the “unilateral” refers to in each type of circumstance, so in practice, it is subject to the discretion of the real estate registration authority.

[Article 15] The party or their agent shall go to the office of the real estate registration authority to apply for real estate registration. Before the registration authority records the application matters in the real estate register, the applicant may withdraw the registration application.

Article 16 An applicant shall submit the following materials and shall be responsible for the authenticity of the application materials: (1) an application form for registration; (2) identification materials of the applicant and the agent, and a power of attorney; (3) proof materials of the source of the relevant real property rights, documents certifying the reasons for registration, and the real property rights certificate; (4) materials such as the boundary, spatial limits, and area of the real property; (5) explanatory materials regarding interests with others; and (6) other materials as provided by laws, administrative regulations, and the implementing rules of these Regulations. The real property registration authority shall make public at its office premises and on its portal website information such as the catalog of materials required for registration applications and model texts.

Article 17 When the real estate registration authority receives the application materials for real estate registration, it shall handle them respectively according to the following circumstances: (1) If the application falls within the scope of registration duties, the application materials are complete and comply with the statutory form, or the applicant has submitted all supplementary and corrected application materials as required, it shall accept the application and notify the applicant in writing; (2) If there are errors in the application materials that can be corrected on the spot, it shall inform the applicant to correct them on the spot, and after the applicant corrects them on the spot, it shall accept the application and notify the applicant in writing; (3) If the application materials are incomplete or do not comply with the statutory form, it shall, on the spot, notify the applicant in writing that the application will not be accepted and inform the applicant of all the contents that need to be supplemented and corrected at one time; (4) If the real estate for which registration is applied does not fall within the registration scope of this authority, it shall, on the spot, notify the applicant in writing that the application will not be accepted and inform the applicant to apply to the authority with registration power. If the real estate registration authority fails to notify the applicant in writing on the spot that the application will not be accepted, the application shall be deemed accepted.

Interpretation:

This article specifies the materials required for applying for real estate registration, standardizes the registration process, simplifies application procedures, and emphasizes the principle of on-site review.

Unified information sharing

[Article 24] Information related to real estate registration, along with approval and transaction information from departments such as housing and urban-rural development, agriculture, forestry, and marine affairs, shall be shared in real time. Information that can be obtained by the real estate registration authority through real-time sharing shall not require applicants to submit repeatedly.

[Article 25] Departments such as land and resources, public security, civil affairs, finance, taxation, industry and commerce, finance, auditing, and statistics shall strengthen the sharing of information related to real estate registration.

Interpretation

After information sharing among departments, the scope of inquirers has expanded from rights holders and interested parties to relevant state organs, which may, in accordance with laws and administrative regulations, inquire about and copy real estate registration materials related to matters under investigation and handling. Under the current registration system, courts can search for properties by person through judgment documents, but court inquiries require parties to provide property clues, such as the location of the property, and then conduct inquiries at the real estate registration authority where the property is located. In litigation practice, the Xi'an Real Estate Registration Department does not accept lawyers' inquiries regarding property rights disputes arising from creditors' rights and debts.

The registration of real estate property rights has long been scattered across multiple departments such as land, housing, agriculture, and forestry, with varying standards and platforms, which is highly detrimental to the protection of rights holders. After acquiring rights through contracts, rights holders face unclear standards on how to fulfill overlapping responsibilities among departments due to different management platforms. Since the Property Law was enacted, the ownership status of real estate has been clearly based on registration. The introduction of the regulations will promote a process of confirming these pending rights.