Oversea Chinese from Canton (Guangdong): the way back to your roots

This is not something new, though I reckon not every oversea Chinese who are affected (in a positive sense) by the local policy really know about it.

I am talking about the policy stepped up by local Guangdong government back in 2011, entitled "Several Opinions on Earnestly Safeguarding Oversea Chinese's the Residential Land Use Right in Rural Area", sponsored by two governmental departments: Guangdong land administration and Oversea Chinese Affairs Office both at provincial level.

I would basically translate the provisions of the policy and reword them in my own way for easier understanding.

I.  Policy Purpose

Apparently local Guangdong provincial government realizes that there are far more oversea Chinese who have fled China from Guangdong prinvince (or Canton) before or at around the founding of PRC (the People's Republic of China).  Those oversea Chinese can be an strong source of steam that is required to further power the growth of local economy. To reactivate or revive the spirit and passion of oversea Chinese for coming back to invest in Guangdong, it is wise and advisable to do some real good to them. I believe this is the rationale behind of the issue of this policy.

In action, Article 1 says: the registration of oversea Chinese residential land use right in rural area shall be carried out in the principle of "respecting history, respecting the interests of the local collective and its members, being in line with past laws and regulations, and respecting the status quo".

These principles will be further elaborated and manifested in the following provisions.

II.  Who are Oversea Chinese

Since the policy is aimed to benefit those oversea Chinese, it is prerequisite to define who are the overseas Chinese.

There have been some rules issued by central and local governments regarding the recognition of oversea Chinese.

Technically oversea Chinese refer to those Chinese citizens that live in a foreign territories. But in practice, for instance in this policy in Guangdong, the benefits are extended to people from Hong Kong, Macau (sorry, Taiwan is excluded) and Chinese descendants who are now foreign nationals.

III. Where the Old Properties Still Stand

If houses and ancestral homes that were built by overseas Chinese before the enactment of China Law on Land Administration (effective as from January 1987) and have not been registered or certified, and have not been rebuilt, extended or added,  then the actual land use area can be granted for such permanent properties.

For Houses and properties that were built between January 1987 and the year 1999 (when the land administration law was overhauled) with the approval of local government, then the land use right shall be that indicated in the relevant building approvals.

Land use right that was obtained as a result of inheritance of houses/apartments shall be registered as per relevant documents.

However, please note that in order to finally get the official rural land use right title, applicants shall need to have need to get a certification from local village (or even sub-village teams) and then obtain an approval from local township government, and finally submit all documents to land  administration department at the county or city level government for the title.

So overseas Chinese that are hoping to keep their existing properties in rural areas in Guangdong province shall work on local village in order to have a good start. It is important for overseas Chinese of younger generation to come back to visit people in the village. If there are still old generation that recognize you, then it would be great. After all, nobody has to give back to you.

On the other hand, if those ancestral homes are still there, it is generally easier to be granted land use right.

IV.  Where Ancestral Properties were Demolished or Collapsed

If the overseas Chinese's homes in the rural area are demolished or collapsed, and the original lands have not been assigned to others, subject to local village's and sub-village team's consent and approval of local township government, and the grant by the county/city government, the original lands can be restored for use by the oversea Chinese provided that the total area of land so restored shall not be greater than the standards applicable to households in that region. If the original lands have been assigned to others, in principle, no land shall be allocated to the oversea Chinese. However, if and to the extent that local village has idle and empty land available, subject to the consent of local sub-village team and village and township government, and subject to the approval of the local county government, such empty land can be arranged for overseas Chinese, or properties built collectively by local villagers may be allocated for such oversea Chinese.

V. Other Circumstances

The policy has touched on a few other circumstances that may not happen much. For example, if the land use rights underlying overseas Chinese ancestral homes are registered in its relatives' names before the enactment of China Land Administration Law (1999 version) and have not been rebuilt, extended or added, it is still possible to change the title back to the overseas Chinese.

The policy also mentioned that overseas Chinese can be entitled to compensation from local government if their ancestral homes are legally demolished for redevelopment.

The policy has been there for years, and the not very long ago, Guangdong province has stepped up its overall rules for protecting the rights and interests of the overseas Chinese, entitled "Regulation on the Protection of the Right and Interests of Overseas Chinese from Guangdong Province", in which the major ideas of the Policy have been incorporated into the regulation and offered more.

Jason Tian

Jason Tian, senior partner, specializes in foreign-related legal services ranging from foreign investment in China, banking and capital, real estate, M&A, corporate, international trade, estate planning, inheritance and divorce at his blog: http://www.sinoblawg.com.

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