It is well known that civil air defense parking spaces cannot be registered for real estate and obtain real property ownership certificates. In short, civil air defense parking spaces only have the right to use, but not the right to own. However, we have found that a very small number of residential areas in Nanning have obtained real property ownership certificates for civil air defense parking spaces and obtained real property ownership. This article discusses this matter from different perspectives.

 

1. The Process of Applying for Real Property Ownership Certificate

 

Currently, the ownership of the relevant civil air defense parking spaces is registered under the name of the developer and has not yet been divided and sold to the public. This real estate registration certificate is a replacement certificate issued by the Nanning Housing Authority in accordance with the "Regulations on Real Estate Registration".

 

According to the internal files of the original Nanning Housing Authority, the real estate registration department obtained a "Certificate" issued by the Nanning Civil Air Defense Department. The certificate stated that, in accordance with the "Regulations on the Development and Utilization of Urban Underground Space," underground projects should adhere to the principle of "whoever invests, owns, and benefits," allowing construction units to independently operate or legally transfer and lease underground projects they invest in and develop.

 

It is also understood that the housing department at that time used the above-mentioned certificate as the basis for the developer to apply for the property ownership certificate.

 

2. Applicable Laws, Regulations, and Normative Documents

 

From the perspective of legal application, to judge the legality of an act, the law or norm in effect at the time the act was committed must be the standard, that is, "laws are not retroactive." In other words, whether the developer's application for real estate registration for the parking spaces in question is legal should be based on the laws, regulations, or normative documents in effect at the time the property ownership certificate was applied for, and the laws, regulations, or normative documents in effect today cannot be applied.

 

Before the implementation of the "Property Law" on October 1, 2007, the principle of statutory property rights was not established in my country's legal system, and the developer obtained the property ownership certificate before the implementation of the "Property Law." As mentioned above, we cannot apply the relevant provisions of the "Property Law" to judge whether the behavior before the implementation of the law is legal.

 

However, before the implementation of the "Property Law," the law did not clearly stipulate the ownership of civil air defense basements, whether property ownership certificates could be applied for, and how to apply for them. In other words, the ownership certificate issue for relevant civil air defense parking spaces is a legacy issue.

 

3. Regulations on Property Ownership Certificates for Civil Air Defense Parking Spaces in Other Domestic Cities

 

1. Chongqing

 

According to the "Notice of Chongqing Municipal Land and Housing Management Bureau on Issues Related to the Registration of Ownership of Civil Air Defense Projects" (渝国土房管发〔2009〕51号): After the initial registration of combined civil air defense projects according to law, if they are also used as parking lots, the government allows them to be sold with reference to ordinary underground parking garages, and agrees that the purchaser has ownership of the civil air defense project with parking garage functions. Therefore, civil air defense parking spaces can be sold and property rights can be obtained.

 

According to the "Notice of Chongqing Municipal Land and Housing Management Bureau on Issues Related to the Registration of Ownership of Civil Air Defense Projects" (渝国土房管发〔2009〕51号): When the ownership of a combined civil air defense project is transferred or changed, the transfer or change contract must state: "1. The purpose is for civil air defense projects and must comply with national regulations on the maintenance and peacetime use management of civil air defense projects, and should be used, maintained, and managed by the owner during peacetime; 2. When the provincial or higher-level people's government issues an emergency order, the civil air defense authorities will centrally manage and use it free of charge; 3. It is not allowed to change the main structure of the civil air defense project without authorization, demolish or damage the civil air defense project, or impair the effectiveness of the civil air defense project." When civil air defense parking spaces are resold, they are not restricted like non-civil air defense parking spaces.

 

In addition, according to the above-mentioned notice of Chongqing, the property ownership certificate of civil air defense parking spaces is issued by the land and housing management department of the district or county where the project is located, and its validity period is subject to the years approved on the property ownership certificate.

 

2. Guangzhou

 

The "People's Air Defense Law" and the "Implementation Measures of Guangdong Province for the "People's Air Defense Law of the People's Republic of China"" do not clearly stipulate the ownership of civil air defense parking spaces. According to the provisions of the "Property Law" and other laws and regulations, the subject of the right to use land and the ownership of houses on the land should be consistent. According to Article 9 of the "Guangzhou Real Estate Development Project Parking Space and Garage Rental and Sales Management Regulations": "The real estate ownership certificate of parking spaces and garages in civil air defense projects shall indicate relevant usage precautions." That is to say, civil air defense parking spaces have a normative basis for handling ownership registration.

 

According to Article 25 of the "Guangzhou Civil Air Defense Management Regulations", the determination of the ownership of civil air defense projects is based on the "Property Law of the People's Republic of China" and relevant laws and regulations, and the principle consistent with the right to use construction land applies. Civil air defense projects can be registered for property rights in accordance with relevant regulations. The real estate registration department shall indicate the civil air defense project in the registration book and the attached note column according to the construction project planning application and acceptance documents and their attached drawings.

 

3. Shanghai

 

According to Article 20 (Ownership) of the "Shanghai Civil Air Defense Project Construction and Use Management Measures" promulgated by the Shanghai Municipal People's Government, investors in civil air defense projects may obtain ownership of the civil air defense project in accordance with the relevant provisions of real estate management. The registration of ownership of civil air defense projects shall be implemented in accordance with the relevant provisions of real estate registration in this city.

 

4. Lawyer's Opinion

 

1. The Responsibilities of the Civil Air Defense Department

 

We believe that the statutory responsibility of the people's air defense authority is to implement the peacetime maintenance and management of air defense basements, prevent damage and reduce the effectiveness of use, and does not have the authority to stipulate or define the ownership and certification matters of air defense basements. Before the implementation of the "Property Law", the "Regulations on the Development and Utilization of Urban Underground Space" only stated that from the perspective of the civil air defense department, the property owner is allowed to apply for a property ownership certificate, but this regulation cannot be used as a legal basis for the housing registration department to handle real estate registration. After all, according to the division of responsibilities, the statutory responsibilities of the people's air defense authority do not include handling property ownership certificates.

 

2. Matters Concerning the Ownership of Civil Air Defense Basements

 

Currently, there is a lot of controversy about the ownership of civil air defense basements, especially after Article 5 of the "Property Law" established the basic principle of "statutory property rights", the ownership of civil air defense basements is in an unclear status. Not only do the normative documents issued by Chongqing, Guangzhou, and Shanghai mentioned in the previous article lack a basis in higher-level laws, but even in Guangzhou, where local regulations allow the handling of property ownership certificates for civil air defense parking spaces, there is still an embarrassing situation where there are no relevant regulations to follow.

 

3. There are currently three main views on the division of ownership

 

The first view is that the ownership of civil air defense basements belongs to the state. The main reason is that civil air defense basements are public welfare facilities and should play a role in disaster avoidance and rescue during wartime. If they belong to private individuals, it is easy to make it difficult to play a role during wartime. In addition, if a civil air defense basement is not built, the off-site construction fee paid will also be one of the fees collected by the state.

 

The second view is that the ownership of civil air defense basements belongs to all owners. The main reason is that the developer has allocated the cost of building civil air defense basements to each household, and civil air defense basements are public facilities in the community, and together with other public facilities in the community, they are jointly owned by all owners in the community.

 

The third view is that the ownership of civil air defense basements belongs to the builders, that is, the developers. The main reason is that, according to the view of "whoever invests, who benefits" in civil air defense facilities, the developer, as the builder of the civil air defense basement, should enjoy the ownership, and then can exercise the rights of occupation, use, income and disposal based on the ownership. However, once in wartime, it needs to be handed over to the civil air defense authorities for unified disposal, and in peacetime, it must also shoulder the maintenance obligation to ensure the integrity of the civil air defense facilities, which is one of the situations where the ownership is restricted.

 

Regarding the above three views, we prefer the third view. We believe that civil air defense basements, like other parts of civil buildings, are invested and constructed by developers. Since developers can obtain property rights for other parts of civil buildings, the property rights of civil air defense basements should also belong to developers.