Illegal construction: Whether balcony window sealing is an illegal construction

Author | Shangxian Real Estate Legal Service Team, Lawyer Li Wenjun

The author's note: Balcony window sealing (as shown in Figure 1) is a very controversial topic in recent years. For owners, a balcony is safe and clean, and it can also increase the indoor area. Especially in cities with high housing prices such as Shenzhen, it is simply beneficial and harmless. For property companies, window sealing by owners in the property management area, firstly, it destroys the unity and beauty of the building's appearance, and secondly, it will inevitably lead to complaints from other owners. Therefore, most property companies are opposed to balcony window sealing. For law enforcement agencies, relevant complaints and reports need to be dealt with by law enforcement agencies, and even gradually evolve into a law enforcement problem for law enforcement agencies in urban planning areas.

First, the basic case and the focus of the dispute

(1) Basic case

On March 12, 2019, the defendant Longhua District Planning and Land Supervision Bureau received a complaint and report about the plaintiff's illegal renovation of balconies in the real estate involved. On March 18, 2019, the defendant Longhua District Planning and Land Supervision Bureau issued a "Notice of Demolition within a Time Limit", arguing that the plaintiff had illegally remodeled balconies without approval, covering an area of about 3 square meters, in violation of Article 44, Paragraph 1, of the Urban and Rural Planning Law of the People's Republic of China, and ordered the plaintiff to demolish them by himself before March 25, 2019.

The plaintiff refused to accept the "Notice of Demolition within a Time Limit" made by the defendant's Longhua District Planning and Land Supervision Bureau, and applied to the defendant's Longhua District Government for administrative reconsideration on March 27, 2019. After the defendant's Longhua District Government accepted it, it made an administrative reconsideration decision on May 24, 2019, upholding the "Notice of Demolition within a Time Limit" made by the defendant's Longhua District Planning and Land Supervision Bureau. The plaintiff refused to accept the lawsuit and went to the court.

(2) The focus of the controversy

Plaintiff claims: The so-called "remodeling balcony" refers to two acts: demolishing walls and installing windows. Demolition is not construction, not illegal construction. Is installing windows a construction act? Of course not, it is the plaintiff's legal exercise of the power of use and disposal in the four major powers of ownership (possession, income, use, and disposal), in order to more reasonably use the property involved.

The balcony is a legal building, and the plaintiff has complete ownership of it. Installing windows is a reasonable use of the balcony and a function of exercising real rights. Whether the balcony is calculated as the full area or half the area, the owner has ownership of the entire balcony, not just half of the balcony.

The defendant claimsAfter comparing the drawings, the balcony was originally planned to be open, and the plaintiff closed the balcony by building a glass exterior window on the balcony, changing the facade of the house and rebuilding an area of about 3 square meters. This is an act of temporary construction without approval. The owner of the property right does not have the right to change the building plan. The property right should also be exercised in accordance with the law.

The reconsideration authority believes thatThe "Demolition Notice within a Time Limit" issued by the defendant Longhua District Planning and Land Supervision Bureau found that the facts were clear, the applicable law was correct, and the procedures were correct.

(3) The court holds that

According to the investigation of the defendant's Longhua District Planning and Land Supervision Bureau, there was an open balcony outside the living room during the planning acceptance of the real estate involved. After the plaintiff renovated,The open balcony has been converted into a closed state. The original plan has been changed, but the plaintiff did not go through the approval procedures, which is an illegal act against the plan.Therefore, it was not improper for the defendant, Longhua District Planning and Land Supervision Bureau, to issue the Demolition Notice within a Time Limit.

II. Case analysis and risk warnings

(I) Case study

The above case isGuangdong Province, Shenzhen City, Yantian District People's Court (2019), Case No. 2002, Yue 0308 XingchuFrom this case, we can see that the Shenzhen Yantian Court (which is also the centralized jurisdiction court for administrative litigation cases in Shenzhen) found that the closed balcony was a planning violation to change the facade of the house.

However, whether balcony window sealing is a planning violation, the opinions of judges in various places are not uniform.

For example, in case No. 1446, Guangdong Province Zhongshan City Intermediate People's Court (2020), the court held that: "According to the real estate plan of the house involved in the case, the A1 and A3 areas involved in the case are not included in the real estate involved in the case, and the A2 area is shown as a balcony, which is an unenclosed area. By comparing the construction drawings, the Municipal Urban Management Law Enforcement Bureau determined that Xing Yan's use of glass windows, brick walls, and balconies to close the North Face platform of the house in Room 2803, Building 44, Binhe Bay Garden was not improper."

For example, the Wuxi Municipal Housing and Urban-Rural Development Bureau stated in the "Reply Letter to Proposal No. 0186 of the Fifth Session of the 14th CPPCC Municipal Committee" that "the Municipal Intermediate People's Court held in the meeting that existing laws and regulations do not directly prohibit owners from closing balconies."

Most regional courts have evaded the issue and revoked the administrative penalties imposed by law enforcement agencies through law enforcement procedures and other issues. For example, in the 2020 Hongwei Family Community series of cases, the People's Court of Daye City, Hubei Province revoked a series of time-limited demolition decisions made by the Daye City Housing and Urban-Rural Development Bureau on the grounds that the Daye City Housing and Urban-Rural Development Bureau did not protect the parties' right to statement and defense before making the penalty decision to remove the closed balcony within a time limit.

The author believes that the fundamental reason for the controversy over whether balcony window sealing is an illegal construction act lies in the particularity of the balcony - it is both an exclusive part of the owner and an integral part of the overall facade of the building.From the perspective of real rights, according to the provisions of the Civil Code, the owner has the right to own and dispose of his exclusive part of the property, and closes it on the exclusive balcony, which belongs to the owner's legitimate exercise of real rights.

However, from the perspective of planning management and property management, balconies are an integral part of the overall facade of the building. The appearance of balconies affects the overall appearance of the building. Balconies with different shapes are indeed not beautiful and tidy enough. Article 6 of the Administrative Measures for Residential Interior Decoration also stipulatesRenovators who engage in residential interior decoration activities shall not engage in the following acts without approval: (2) Altering the exterior facade of the residence and opening doors and windows on non-load-bearing exterior walls.

As of March 1, 2020, with the promulgation of the Shenzhen Special Economic Zone Property Management Regulations, the nature of balcony window sealing in the Shenzhen Special Economic Zone has become clearer.

Article 79 (1) (4) of the Shenzhen Special Economic Zone Property Management Regulations provides: "The following acts are prohibited in the property management area: (4) Damaging or altering the appearance of the house without authorization；Article 119 (3): "Any of the following acts in the property management area shall be investigated and dealt with by the relevant administrative department in accordance with the following provisions: (3)Those who violate the provisions of Items 3 to 5 of Paragraph 1 of Article 79 of these Regulations shall be investigated and punished by the district planning and land supervision agency in accordance with the provisions of relevant laws and regulations; ", and the powers of the planning and land supervision agencies in Shenzhen districts are to investigate and punish planning violations and land violations according to law.That is, within the scope of Shenzhen Special Economic Zone, it has a clear legal basis to determine that balcony window sealing is a planning violation.

(2) Risk warning

For administrative counterpartsClosed balconies still pose a greater risk, and in addition to being investigated by law enforcement agencies, they may also be required to be demolished by the property.

In many community owners' conventions or developers' sales contracts, in order to facilitate management, it will be clear that balconies shall not be closed. If the owner closes the balcony under the agreed circumstances, the property has the right to require the owner to restore the original state. Such legal precedents are not few. For example, in the case of Yubei District People's Court of Chongqing (2022) Yu 0112 Minchu No. 14192, the court held that the defendant signed the "Greentown Xiaofeng Yinyue Project Preliminary Property Service Agreement", "Greentown Xiaofeng Yinyue Life Service Center Decoration and Renovation Management Agreement", etc. are the true meaning of the owner, and the content does not violate the mandatory provisions of relevant laws and administrative regulations, and is legal and valid. It is binding on the defendant and shall abide by the agreed content.

The open balcony belongs to the collection of exclusive parts and common parts, not all of which belong to the exclusive part of the defendant. Therefore, the agreement prohibiting closed balconies cannot be regarded as excluding or unreasonably restricting the owner's reasonable and normal use of the exclusive part. Therefore, the owner shall abide by the provisions of the Interim Management Statute and the "Terrace (Platform) Use Commitment".

The plaintiff's petition for the defendant to remove the enclosed balcony that had not been jointly decided by the owners and restore it to its original state complies with the law, and this court supports it.

For law enforcementAlthough the "Shenzhen Special Economic Zone Property Management Regulations" have clear provisions, but the law enforcement should still pay attention to the specific situation of closed balconies, many owners and decoration companies in order to avoid closed balconies after investigation, the use of some removable or openable materials for window sealing, such acts should not be investigated and punished together with planning violations, should be combined with the actual situation.

About the Author

Lawyer Li Wenjun

Attorney of

Host lawyer of Shangxian Real Estate Legal Service Team

Member of Administrative Litigation Professional Committee of Shenzhen Lawyers Association

Member of the Labor Law Professional Committee of Bao'an District Law Work Committee

Graduated from Zhongnan University of Economics and Law, familiar with the history and system of real estate in our country and Shenzhen, handled a large number of illegal construction and illegal land investigation, historical illegal construction treatment and other projects, has provided perennial legal advisory services for many administrative organs in Shenzhen, as the host lawyer drafted more administrative law enforcement, information disclosure, administrative reconsideration, historical illegal construction treatment and other normative documents, assisted in handling a large number of administrative law enforcement, government procurement and other difficult issues, sponsored administrative reconsideration and administrative litigation cases over 1

00cases.

Phone: 13714580045

WeChat: lawyer-liwj

Team Profile

Shangxian Real Estate Legal Service Team

Shangxian and Able · Keeping Integrity and Truthfulness

Shangxian's real estate legal service team is headed by lawyer Li Huijie, who has handled a large number of real estate legal service projects and is committed to building a professional real estate legal service team.

Lawyer Li Huijie

Senior Partner of

Head of Shangxian Real Estate Legal Service Team

Graduated from Zhongnan University of Economics and Law, familiar with our country and Shenzhen real estate history and system, as the host lawyer has dealt with many urban renewal, land preparation, land preparation interests co-ordination, housing expropriation and other old reform projects, as a core staff involved in district land preparation, urban renewal, non-agricultural construction land management and other normative documents drafting special projects, has provided perennial legal advisory services for multiple district urban renewal and land preparation departments to assist in dealing with a large number of land, housing historical problems legacy.

Mobile number: 15118847785

WeChat number: erling 1027

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