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China’s land registration: Challenges and efforts
Land registration information management and inquiry system is proposed to facilitate the standardization of land registration,
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Overview of China’s land registration
History of China’s land registration
China’s land registration has a very long history. According to archaeological discoveries, at least in Western Zhou Dynasty (9th century BC when China’s earliest written records were confirmed), there are some records about a king granting land, including the information of the land owner and neighboring land owner (Fan 2003).
China’s land registration system changed over time. The current land registration system was formed mainly since late 1980s. ‘Land Management Law’ promulgated in 1986 states: “Farmer collective owned land should be registered by the county government and be issued certificates to confirm the ownership. Rights of state-owned land should be registered by local people’s governments above the county level and certificates should be issued to confirm the use of these rights.” ‘Land Management Law Implementation Regulations’ states: “State implement land registration system according to law.” In 1989, the Bureau of Land Management (MLR predecessor) introduced ‘Land Registration Rules’, stipulating land registration procedures and requirements. After ‘Property Law’ was enacted in 2007, MLR amended ‘Land Registration Rules’ and promulgated ‘Land Registration Measures’ that constitutes the legal basis and institutional framework of China’s current land registration.
Progress of China’s land registration
In urban areas, especially in cities, the local governments (primarily counties, municipal government and land administration department) have been carrying out land registration since the late 1980s, and most cities have almost completed the registration of built land within the cities.
Though China has also started to carry out land registration in rural areas since the late 1980s, the rural land registration has a relative smaller coverage compared to urban land registration, while some registrations are not up to date and some other information are missing. So in 2010, as a measure to support the economic and social development in rural areas, the State Council launched the national land registration campaign for the ownership of farmer collective owned land in such regions. By the end of 2012, the registration of rural land ownership had almost finished and the registration rate had reached 94.7 percent (MLR, 2012). For the use rights registration of farmer collective owned land in rural areas, though the registration rate is about 80% according to statistics data (MLR, 2011), there are some problems such as outdated information, low measurement accuracy and even lack of cadaster map; so the work must emphasize in the following years to promote the land registration of use rights of farmer collective owned land in rural areas.
Current land registration system in China
Currently, China’s land registration system is primarily stipulated by ‘Property Law’ and ‘Land Registration Measures’.
Types of land registration
According to ‘Land Registration Measures’, the types of land registration include total land registration, initial registration, change of registration, cancellation of registration and other registration. Total land registration means making an effort to register land as much as possible within a certain time in a specific area. Initial land registration refers to the first registration of one parcel of land, except the cases in total land registration. Change of registration refers to the situation when some information is changed, such as transfer of land, or changes of owner’s name. Cancellation of registration is carried out when the land rights have ended. Other registration refers to those other than the above mentioned ones, including correction of registration, registration of objection, registration of notice, and registration of warrant of seizure.
The general procedure of land registration
The basic procedure of land registration is divided into four steps: Application for land registration, land tenure censorship, registration, and issuance of certificates, though different types of land registration may have small differences in their procedure.
Application for land registration
‘Land Registration Measures’ states “land registration shall be based on the application for land registration, except situations stipulated by laws and regulations.” To apply for land registration, the applicant has to submit proof of personal identity, proof of land rights, cadastral survey data and other materials in accordance with regulations. Under special circumstances, such as registration authorities confirming that the applicant has a fraud in its land registration; then the registration authorities can carry out the cancellation of registration in accordance with prescribed procedure without any application.
Land tenure censorship
After the application has been accepted, the land registration agency has the responsibility to censor the documents submitted by applicants to determine if the registration application should be admitted. Comments and advice will be given to government at or above county level. Then the local government will make the decision to register or not. There are three principle criteria for censorship: Legal right, clear boundary and accurate area. Only a staff member with a license can conduct land tenure censorship in land registration.
Registration
After land registration is approved, the registration will be conducted to record the information. Upon registration, land rights take legal effects. Land registration agency and the person responsible shall take the onus for the mistake. In recent years, there have been some cases that the land registration staff was prosecuted against breach of duty for their mistakes in land registration.
Issuance of certificate
After the land was registered, the land administrative department that acts as land registration agency will issue a land certificate to the applicant in accordance with the registration result on behalf of the government. Currently, there are four types of land rights certificates: “Certificate for use right of state-owned land,” “certificate for ownership of farmers collective owned land,” “ certificate for use right of farmers collective owned land,” and “certificate for other land rights.”
Features of China’s land registration system
Legal Effect of land registration
‘Property Law’ states “the establishment, change, transfer and elimination of real property take effect after registration; without registration, no effectiveness, except the situations stipulated by laws. Ownership of natural resources belong to the state and don’t need to be registered.”
Principal of application
Land registration can only be conducted on the basis of the application on applicant’s own accord, except in situations stipulated by laws and regulations. It is not compulsory to apply for registration.
Territory registration
The applicant should submit the land registration application to local land administrative department of governments at or above county level. And theoretically, local government will register land rights and issue right certificate, but in reality, land administrative department of government carries out the tasks of land registration on behalf of the local government.
Land register is the legal basis for land rights
Land register has the highest legal authoritative. Information documented in land certificates shall be consistent with the land register, except when there is affirmative evidence that the land register does have errors.
Land registration information is available for query
According to “land registration information public query measures” issued by MLR in 2002, the results of land registration, including land register and cadaster survey map, are open to queries, but it cannot be implemented in reality. It is possible for some public agencies like police, court and revenue department to provide the registration information.
Land registration agents
China has set up a system of land registration agents who can help applicants apply for registration. In some places, there already are some established land registration agents and companies, and some provinces have established provincial association of land registration agents. Currently, the state association of land registration agents is in the phase of preparation.
Buildings are not included in land registration
Land registration is limited to a narrow scope that means only land, not including housing and other buildings on the land, as well as attachments, are registered in land registration.
Challenges of China’s land registration
Dispersed land registration
In accordance with the dispersed land administrative system, land was registered by several departments (He, 2013) and has different land registers and procedures. For ownership of farmers’ collectively owned land, rights are used for construction, for villager’s housing, land mortgage, easements, etc. These can be registered by the land administrative department. For rural land contracted management rights, prairie ownership, rights of water and coastal mud fl at for breeding aquatics were registered by the agriculture administrative department; ownership and use rights of forestry and woodlands were registered by the forestry administrative department; and housing ownership were registered by the housing and construction administrative department.
Dispersed land registration brings a lot of problems. For land is registered by different departments according to different criteria. Without sharing of information, confl ict or inconsistency will inevitably occur. For instance, one parcel of land registered by forestry administrative department may overlap with other parcels of land registered by agriculture administrative department. Land registration was scattered in different administrative departments and not sharing of registration information is not conducive to protect land rights and to secure land transactions. Also, overlapping of registration administrative institutions increased fiscal spending and reduced administrative efficiency.
Relatively lagging land registration in rural areas
In urban areas, almost all land has been registered, though some still ’haven’t been digitally recorded. While in vast rural areas, some lands are not registered yet, and even among the registered ones, most have the widespread problem of incomplete and outdated information. There are some cases that right holder has the land certificate while the registration agency doesn’t have any documents and information about the land registration. Also, there are some cases in which what has been recorded in the registers is inconsistent with the reality for there is no constant update. We also can find some mistakes in rural land registration. The reasons of relatively lagging rural land registration could be the poorer working conditions of land registration in the 1980s and 1990s, and less attention was paid to land registration at that time because rural lands were strictly restricted in terms of rights.
Efforts made to improve China’s land registration
Implementation of unified land registration system
Though ‘Property Law’ enacted in 2007 has already proposed “national unified registration system for real estate,” there is very few progress on the way of implementation. Until early 2013, in the “institutional reform of the State Council and the functional transformation plan,” the State Council pledged to “reduce overlapping responsibilities of departments to maximize integration of the same or similar functions which were dispersed in different departments of the State Council. The duties of housing registration, woodlands registration, prairie registration and land registration should be integrated in one department.” In December 2013, the State Council clearly stipulated that Ministry of Land and Resources should be responsible for the guidance and supervision of real estate registration, including houses, grasslands, woodlands, waters, etc. The unified system could be demonstrated in ‘four unity’, which are unity of registration agency, unity of register, unity of registration regulation and unity of registration information platform. Therefore, currently unified land registration system is in the early stage of implementation.
Unified land registration, which will be carried out by land administrative department, will need close cooperation of various administrative departments and a step by step transition is anticipated. The first task is to build the working mechanism for the close cooperation of various departments. Land registration has a very close relationship with land administration, so in accordance with the still dispersed land administration system, unified land registration needs close cooperation within various departments, especially in sharing of information.
The second task is to gradually collate and integrate original land registration information recorded by various departments, and at the same time, it is very important to make sure that all certificates that have been issued should remain valid. The third task is to gradually integrate registration agency. At the level of central government, the Cadaster Department in the Ministry of Land and Resources will have another institution such as the Bureau of Real Estate Registration to guide and supervise the unified land registration. At the level of local government, it is also needed to integrate the registration agency, particularly at the level of county or municipal government for they are the concrete agencies to register in accordance to the principle of territoriality registration.
Efforts for rural land registration
Since 2010, as one important measure of the national strategy for rural development, rural land ownership registration has been the focus of the government, especially for local government and their land administration departments. The registration of farmers collective owned lands have been basically completed by the end of 2012, and the government has shifted their focus to the land use rights registration in rural areas, mainly including rights of land for construction and rights for villager’s housing. Currently, a lot of local governments are boosting rural land registration. They try to register what hasn’t been registered earlier and to supplement or update what has been registered before. In the new round of rural land registration, new survey methods are widely used to improve the measurement accuracy. Another main task of new round of rural land registration is to promote the land registration information system construction. Land registration information management and inquiry system is proposed to facilitate the standardization of land registration, land registration information sharing and applications.
References
1. Fan Zhiquan. (2003). China Cadastre over 5000 Years. Encyclopedia of China Publishing House
2. Ministry of Land and Resources. (2012). China Land and Resources Gazette 2012.
3. Ministry of Land and Resources. (2011). China Land and Resources Gazette 2011.
4. He Huanle, Jiang Dong, Zhang Peng. Discussion on Developing China’s Unified Real Estate Registration System: Transitional Plan to Resolve Problems of Dispersed Registration System. China Land Science,27(7), pp.10-14.
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