In most inheritance cases, the handling of property issues, especially real estate, is often involved as real estate holds a crucial position in the family's property structure. Due to the special attributes of real estate, it is one of the easiest to locate and appreciate assets. Consequently, real estate becomes a primary asset in inheritance cases, subject to dispute among the parties involved. However, due to the diverse types of real estate, there are significant legal distinctions regarding whether different types of real estate can be inherited. This article provides a brief analysis of the inheritance legal issues concerning four special types of real estate.

Can Public Housing be Inherited?

There are two types of public housing: directly managed public housing, owned or directly operated by the national real estate management authorities, with ownership classified as state-owned assets. Tenants of directly managed public housing obtain leasing rights through applications to administrative authorities. The other type is self-managed public housing, constructed with funding from government agencies, social organizations, or state-owned enterprises and institutions. Ownership belongs to the respective entities, which allocate and dispose of the properties.

Public housing can still be found in society, and we have dealt with several inheritance cases involving public housing. Many parties, especially older individuals, often mistakenly believe that this type of property can be inherited. However, in reality, this type of property is a legacy of a special system, and the ownership belongs to the state, government agencies, or corporate entities. Therefore, this type of property cannot be inherited because it is not a private property of the citizens.

Given that the ownership belongs to the state or the entity, can the right to lease, obtained by the original occupant through leasing, be inherited upon the original occupant's death? This is a concern for many parties involved in the case. After all, housing is a basic necessity, and if one cannot acquire ownership, occupying the house is better than having nothing.

However, legally, the leasing right cannot be inherited, and it is not feasible to obtain the leasing right through a court judgment. Once the original lessee passes away, the state or the entity has the right to reclaim the property and reassign or lease it to eligible tenants. Therefore, if one wishes to continue residing in the house where the original lessee lived, they can apply to change the lessee. The specific conditions for changing the lessee are subject to the regulations of the local government's real estate management department or the relevant internal regulations of the entity.

Reference case: People's Court of Lianchi District, Baoding City (2018) Ji 0606 Min Chu 153. In this case, the trial court held: "Inheritance refers to the legitimate personal property left by a citizen upon death. In the case of public housing, citizens only have the right of habitation and do not have ownership. The request of the second plaintiff in this case to confirm the inheritance right of the state-managed public housing at No. 12 Xiyu Hutong, Baoding City, where the biological father, Jin XX, lived before his death, does not fall within the jurisdiction of the people's court."

Can Affordable Housing be Inherited?

Affordable housing is a form of housing security provided by the state. The land for affordable housing is generally allocated through unified national planning without charging land transfer fees, and various approved fees receive preferential collection treatment. The sale price is guided by government pricing for housing.

This type of property is abundant in the market, as it is much cheaper compared to commercial housing. Although there are certain thresholds for application and specific conditions to meet, and the property cannot be traded on the market within 5 years of purchase, many people still choose to buy it. The nature of affordable housing is different from the public housing mentioned earlier. Affordable housing may be inexpensive, but it is still bought with real money, so, of course, this type of property can be inherited. For example, in the official reply by the Beijing Municipal Land and Resources Bureau regarding the issue of inheriting affordable housing (Jing Guo Tu Fangguan Shi Yi [2003] No. 964), it is explicitly stated: "1. According to the provisions of the national inheritance law, the affordable housing can be inherited by those who meet the inheritance conditions. 2. When inheriting the property, there is no need to pay additional land transfer fees, and the property rights registration will still be for affordable housing. 3. The land transfer fees shall be paid as required when the property is listed for sale after the inheritance procedures have been completed."

Reference case: People's Court of Xiangyang High-tech Industrial Development Zone (2017) E 0691 Min Chu 1184. The trial court in this case held: "Considering the nature of the property, the current status of the mortgage loan, and the principle of not impairing the effectiveness of the estate, Lu Mou, Liu Mou1, Liu Mou2 (defendant), and Sun Mou are eligible to inherit the property, provided they clear the remaining housing balance and repay the mortgage loan in full, and comply with the relevant management regulations for affordable housing."

Can Properties with Limited Property Rights be Inherited?

Limited property rights is not a legal concept or specific term. In a sense, limited property rights refer to a lack of ownership, resulting in significant legal disputes. It is a common colloquial term that is distinct from the real property rights officially recognized and differentiated by the national real estate management department, which can be traded. In this article, limited property rights specifically refer to urban village transformation properties built on collective construction land approved by government land and planning, excluding houses built on rural homesteads. With the continuous expansion and development of cities, urban village redevelopment projects are everywhere, with many high-rise buildings not only housing local villagers but also a significant portion of non-local buyers. Like affordable housing, limited property rights properties are not only cheap but are often located in excellent locations, attracting a large number of buyers.

However, unlike affordable housing, limited property rights properties lack a legal property rights certificate, making it impossible to confirm ownership legally, and therefore, inheritance is not possible. Currently, in handling cases, a complete determination of the inheritance issues related to properties with limited property rights cannot be made. Although the courts do not confirm the property rights of limited property rights properties, the inheritors can still use or dispose of the property, so the right to use and benefit from the property still falls within the scope of legitimate inheritance for citizens and can be inherited according to the law.

Reference case: Intermediate People's Court of Dezhou City, Shandong Province (2021) Lu 14 Min Shen 168. The court in this case held in the retrial: "The disputed property in this case is a small property right house from rural reconstruction, which does not possess a real estate registration certificate. As a result, its ownership cannot be confirmed legally, and it cannot be divided and inherited separately. However, the right to use and benefit from the small property right house is within the scope of legitimate inheritance for citizens and can be inherited."

Can Houses on Rural Homesteads be Inherited?

Homesteads are collectively owned land used by villagers to build residences and their ancillary facilities. Only members of the collective organization can apply to obtain homesteads. The acquisition of homesteads strictly follows the principle of one household, one homestead, meaning one villager can only apply to own one homestead. The ownership of the homestead belongs to the village collective, while the right to use belongs to the villagers. Therefore, houses built on homesteads can be inherited, but the right to use the homestead itself cannot be inherited.

If the deceased leaves behind a house on a homestead, even if the inheritors have moved out of the village and obtained urban household registration, they can still inherit the property. This is based on the principle of "the land follows the house" and the integrated nature of "house and land." However, it is essential to emphasize that inheriting the house's ownership and the right to use the homestead through inheritance does not mean the right to use the homestead can be inherited separately. In other words, if there is no house on the land, the inheritors will not gain anything.

Reference case: Intermediate People's Court of Zhaoqing City, Guangdong Province (2014) Zhaozhongfa Shen Jian Zai Zi No. 2. In this retrial case, the court held: "At the time of Mo XX's death, the disputed homestead had only temporary pigsties and pig sheds built. Therefore, the disputed homestead cannot be allocated as inheritance independently. The original and appellate courts treated the disputed homestead as inheritance property and granted inheritance rights to Chen XX and others, which violated the spirit of the law and should be corrected."