The Measures for Land Registration (the Measures) went into effect in China on February 1, 2008, signifying a step by the Ministry of Land and Resources (the MLR) to implement the relevant provisions in the Property Law, which went into effect on October 1, 2007. The Measures delineate the categories of land-related rights that should be registered, streamline the registration process, and add new types of registration to better protect the holders of various rights.
The Property Law establishes that the state will build a uniform registration system for real estate, but leaves the creation of specific measures to other laws and administrative regulations. As early as 1989, the then National Land Administration Bureau made the Rules for Land Registration, which were revised in 1995 (the Rules). The Rules, however, were outpaced by the fast-growing economy and increasing land development, and included provisions that conflicted with the Property Law. In response, the MLR issued the Measures at the end of 2007 to maintain the framework of the land registration system existing under the Rules, while significantly modifying it to make it more efficient and consistent, and offer heightened protection of people’s property rights to land in accordance with the Property Law.
• The View on the Function of Land Registration has changed
In the past, land registration was viewed as a mechanism of administrative supervision rather than a mechanism to protect property rights, inform the public, and increase security in transactions. In contrast, the Measures emphasize the protection of various parties’ land rights, and make it clear that land registrations will only provide people with administrative verification rather than government approval. In addition, a fundamental function of the land registration system is to notify people of the rights over or encumbrances on a certain piece of land.
• The Measures Define the Meanings and Scope of Land Registration
For the first time, the Measures specifically define the meaning and scope of land registration. Under the Measures, land registration includes the registration of the state-owned land-use rights, collectively owned land ownership rights, collectively owned land-use rights, land mortgage rights, servitude, or other land rights required by laws and regulations to be recorded on the land registers that are a part of public record. The Measures specify that the state-owned land-use rights include rights to state-owned land for construction or agriculture. The collectively owned land-use rights include rights for construction, agriculture, or rural housing.
The Measures do not allow the registration of land rights in the following situations: the ownership of the land is still in dispute; the land is involved in violations of laws or regulations that have not been addressed or are currently being addressed; relevant land-use fees and taxes have not been paid in full; or the duration of the right to the land has expired. The authorities must notify the applicant in writing of the reasons for the rejection.
• The Measures Streamline Registration Procedures
In general, entities or individuals need to initiate the land registration process. In most cases, the government will not proactively register land. In addition, the applicants need to provide certain documents to prove their land rights to the authorities’ satisfaction. Under the old system, an applicant first had to go through the application process, then await the government’s investigation into the land rights, the verification of those rights, and registration before receiving new or amended certificates. The New Measures no longer require that the government investigate land rights. Instead, an applicant has the burden of proof to prove its land rights.
The Measures provide that land and resource authorities (the “Land Authorities”) at the county-level or above responsible for the land will review the applications. Upon reports by the Land Authorities, the responsible authority will complete the registration, record it in a Land Register, and issue the appropriate land right certificates. However, the Land Authorities will register the mortgage right and servitude on land and issue the Certificate of Other Rights. Under this rule, a holder of a certain land right will only be able to register the right with one Land Authority and receive one certificate.
If there are discrepancies between the information in the Land Register and the certificate, the record in the Land Register will prevail unless any party can show convincing evidence to rebut the record in the Land Register.
• New Land Registration Categories are expected to better protect Property Rights
In contrast to the oversimplified categorization in the Rules that consist only of primary registration and change registration, the Measures further categorize land registrations into comprehensive registration, primary registration, change registration, cancellation registration, and “other registrations.” The “other registration” category includes several important registration mechanisms to further protect people’s land rights.
First, “other registrations” include registrations of objections. If an interested party objects to another party’s claim to certain rights over a piece of land, the government may record the objection in the Land Register to provide the potential rightful owner with temporary protection. Throughout the duration of an objection registration, the government will not allow any mortgage right registration or the registration of any change in land rights. In addition, an objection registration will put third parties on notice to avoid suffering losses due to defects in the land title. The objecting party must file a complaint with a court regarding the dispute over the land right within fifteen days of an objection registration. Once the court decides to hear the case, the objection registration will remain valid until the court delivers its final judgment. Once an objection registration expires, the parties may not petition for another objection registration on the same subject matter.
Second, “other registrations” include pre-registrations, which allow the parties to a land transfer agreement to register their rights under the agreement before the closing of the deal. Both the transferor and transferee in such an agreement must apply for the pre-registration together. Once the actual transfer takes place, they will register the transfer of rights.
Third, seizure registrations are also included as a type of “other registration.” In the past, when a court seized a piece of land to enforce a judgment, the court would seal-off the land or post announcements of the seizure. These measures did not effectively prevent illegal transfers of land or adequately protect bona fide third parties because the legal transfer of a piece of land only required a change in the registration of rights. Therefore, the New Measures require that the Land Authorities record on the Land Register any court seizure or pre-seizure of land. Once the Land Register shows such registrations, under relevant regulations, any action that affects the interests in the land will be invalid.