Real estate perspective... Contract effectiveness analysis of the rental of houses without fire acceptance.

Published:

2023-07-10

1. issues raised Fire inspection and acceptance refers to the qualified investigation of fire inspection conducted by the fire department during the completion and operation of enterprises and institutions. The completed construction project is generally submitted by the construction unit to the housing and construction department for fire control acceptance of the project, and can be put into use only after passing the acceptance. Because of the safety of the people's lives and property, which is directly related to fire safety, the third paragraph of Article 13 of my country's Fire Protection Law clearly stipulates: "Construction projects that should be subject to fire protection acceptance in accordance with the law, without fire protection acceptance or unqualified fire protection acceptance, It is forbidden to put into use; other construction projects that fail to pass random inspections in accordance with the law shall be stopped." In practice, there are many houses that are rented out without fire inspection, how to judge the validity of the above-mentioned housing lease contract, how to understand the provisions of Article 13 of the Fire Law, there are different views in judicial practice, this paper intends to analyze the above-mentioned problems through four cases. 2. Related Cases and Referee Views The (I) determines that the lease contract is invalid on the grounds that whether the leased house has passed the fire protection acceptance is related to the public interest, and the provisions of Article 13 of the Fire Protection Law shall be applied. Case 1: Dispute over Housing Lease Contract between Wang Mou 1 and Ke Mou (People's Court of Menyuan Hui Autonomous County, Qinghai Province [2018] No. 469, 2221 Minchu) The court held that although the house lease contract between the plaintiff Wang mou 1 (counterclaim defendant) and the defendant ke mou (counterclaim plaintiff) was the true intention of both parties, the whole building system indemnificatory housing project to which the house involved belongs is a large-scale densely populated place, and whether it has passed the fire control acceptance is related to the social and public interest. Therefore, the house involved in this case should be identified as a house that must be checked and accepted by the fire department of the public security organ. However, before the end of the court debate in this case, the whole building to which the house involved belongs has not yet been checked and accepted. In this case, the plaintiff Wang Mou 1 (counterclaim defendant) rented the house involved to the defendant Ke Mou (counterclaim plaintiff) who runs the Internet cafe, which obviously violated the provisions of Article 13 of the Fire Law. When the defendant Ke entered into the contract, he failed to fulfill his duty of careful examination, so that he could not go through the relevant fire-fighting procedures. The parties shall bear the liability for the negligence of the contract for the invalid lease of the house. (II), even if the house has been completed and accepted or fire-fighting acceptance after the conclusion of the lease contract, the contract will be found to be invalid on the grounds that the lease contract was signed and the time agreed to deliver the house was before the fire-fighting acceptance. Case 2: Bole Jixiangsheng Real Estate Development Co., Ltd. and Huo Yiming Housing Lease Contract Dispute (Xinjiang Uygur Autonomous Region Bortala Mongolian Autonomous Prefecture Intermediate People's Court [2021] Xin 27 Min Zhong No. 352) The court of first instance held that: Articles 10 and 13 of the "the People's Republic of China Fire Protection Law" stipulate that construction projects that require fire protection design in accordance with national engineering construction standards shall implement a construction project fire protection design review and acceptance system. Projects that should be subject to fire control acceptance according to law shall not be put into use without fire control acceptance or unqualified fire control acceptance. Although the houses involved in this case have been completed and accepted between November 2017 and April 2020, they are prohibited from being put into use without fire control acceptance. The "Jixiangsheng Commercial Plaza Store Lease Management Contract" signed by Huo Yiming and Bole City Jixiangsheng Real Estate Company on November 2, 2017 violated the mandatory provisions of the the People's Republic of China Fire Protection Law and was an invalid contract. The court of second instance held that on November 2, 2017, Bole city Jixiangsheng Real Estate Company and Huo Yiming signed the "Jixiangsheng Commercial Plaza Lease Management Contract", which agreed that the delivery time of the store would be November 11, 2017. On April 14, 2020, Jixiangsheng Commercial Plaza passed the fire acceptance. Both parties sign the contract and agree to deliver the house before passing the fire inspection. Articles 10 and 13 of the "the People's Republic of China Fire Protection Law" stipulate that construction projects that require fire protection design in accordance with national engineering construction standards shall implement a construction project fire protection design review and acceptance system. Projects that should be subject to fire control acceptance according to law shall not be put into use without fire control acceptance or unqualified fire control acceptance. Therefore, the "Jixiangsheng Commercial Plaza Store Lease Management Contract" signed by Huo Yiming and Bole City Jixiangsheng Real Estate Company on November 2, 2017 violated the mandatory provisions of the the People's Republic of China Fire Protection Law and was an invalid contract. The subject matter of the (III) lease has passed the fire safety acceptance, which is not a necessary condition for determining the validity of the housing lease contract. As long as the subject matter of the lease obtains a construction project planning permit, it is not appropriate to deny the validity of the lease contract. Case 3: Disputes over Lease Contracts between Li Huanliang and Liu Zhenzhu (Intermediate People's Court of Bayingoleng Mongolia Autonomous Prefecture, Xinjiang Uygur Autonomous Region [2023] No. 42, New 28 Minzong) The Court held that: This Court held that Article 153 of the the People's Republic of China Civil Code stipulates that "a civil juristic act that violates the mandatory provisions of laws and administrative regulations is invalid. However, the mandatory provisions do not render the civil juristic act invalid. Civil juristic acts that violate public order and good morals are invalid." The provisions of Article 10 and the third paragraph of Article 13 of the the People's Republic of China Fire Protection Law do not invalidate the civil legal acts signed by both parties to the lease contract. The shop involved in the case is a market shop, and the subject matter of the lease has passed the fire safety acceptance, which is not a necessary condition for determining the validity of the housing lease contract. Article 2 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Urban Housing Lease Contract Disputes stipulates that "the lessor has not obtained a construction project planning permit or has not been constructed in accordance with the provisions of the construction project planning permit. The lease contract concluded with the lessee is invalid." The appellee also provided that he had obtained the construction project planning permit, and the court of first instance determined that the lease contract between the two parties was valid and correct, and the court confirmed it. (IV) without completion acceptance and fire acceptance, it is only an administrative provision for delivery and use, not a legal reason for the invalidity of the contract. Case 4: Dispute over Housing Lease Contract between Guiyang Legend Hospital Co., Ltd. and Guizhou Fu 'an Real Estate Development Co., Ltd. (Guiyang Intermediate People's Court of Guizhou Province [2020] Qian 01 Min Zhong No. 4579) The court held that: in addition, for the leased property involved in the case claimed by Legend Hospital without completion acceptance and fire control acceptance, in accordance with Article 61 of the the People's Republic of China Construction Law, "the construction project can only be delivered for use after the completion of the construction project has passed the acceptance; those who have not passed the acceptance or the acceptance shall not be delivered for use." And the second paragraph of Article 13 of the "the People's Republic of China Fire Protection Law", "Construction projects that should be subject to fire protection acceptance according to law, without fire protection acceptance or unqualified fire protection acceptance, shall be prohibited from being put into use; other construction projects that fail to pass random inspections according to law shall be stopped. use." The provisions of the "housing lease contract" should also be invalid reasons, the court believes that without the completion of acceptance and fire acceptance, only the delivery and use of the management provisions, is not the legal reason to determine the invalidity of the contract, so the court also does not accept this. 3. Summary Through the above-mentioned cases, adjudication point of view, there is a certain controversy in the judicial practice of the validity of the house lease contract without fire acceptance. The focus of the dispute is mainly whether the provisions of Article 13 of the Fire Protection Law are administrative mandatory provisions or effective mandatory provisions. Our lawyers tend to think that this provision is a management mandatory provision, because although the provision stipulates that the house is prohibited from being put into use without fire inspection or fire inspection, it does not explicitly state that violation of this provision will result in the invalidity of the contract. And combined with the punishment measures that Article 58 of the Fire Protection Law stipulates that fire control acceptance should be carried out and put into use without acceptance, it can better reflect that the legislative intention of Article 13 of the Fire Protection Law is for the needs of administrative management. Secondly, the contract of external lease without fire acceptance is recognized as effective to better protect the legitimate rights and interests of the contract-keeping party. According to article 157 of the Civil Code, in the event that the contract is invalid, the parties shall return the property or compensate for the discount, and the compensation claimed by the breaching party shall include only the losses caused by the breaching party. And the invalidity of the contract is a cause that both parties can claim, if the lessor in the course of the performance of the contract to claim that the contract is invalid and thus achieve its purpose of termination, the lessee's rights and interests will be further infringed. In the case of the validity of the contract, if the contract stipulates the liability for breach of contract, as long as the agreed breach of contract is not excessively higher than the loss caused to the contract-keeping party, the contract-keeping party has the right to require the breaching party to bear the liability for breach of contract if it fails to cooperate with the fire acceptance procedures or the house fails to pass the fire acceptance. Therefore, it is not appropriate to consider a lease contract that has not passed the fire inspection as an invalid contract. Finally, judging from the judicial practice in recent years and the answers to this question by the local courts, the applicable space for finding the above-mentioned contract invalid will become smaller and smaller. On the one hand, the court in line with the principle of modesty for the determination of the invalidity of the contract more cautious, more respect for the autonomy between the parties, more attention to maintain the stability of the transaction. On the other hand, the "Beijing Higher People's Court's Several Answers on the Trial of Housing Lease Contract Dispute Cases" (Jinggao Fafa (2013] No. 462) also clarified the point of view on this issue. "If one of the parties requests to confirm that the house lease contract is invalid on the grounds that the leased house has not been completed or the fire control acceptance, or the acceptance is unqualified, it will not be supported. If the leased house fails to complete the project or pass the fire control acceptance due to the lessor's reasons, the house does not meet the conditions for use, and the lessee requires the termination of the lease contract in accordance with the (III) provisions of Article 8 of the interpretation of the Supreme people's Court on several issues concerning the specific application of law in the trial of disputes over urban housing lease contracts, which shall be supported." 4. Risk Alert 1. The purpose of the fire inspection and acceptance filing system is to ensure the quality of the house and maintain the safety of people's lives and property. Therefore, although the fire inspection and acceptance does not necessarily lead to the invalidity of the contract, the acceptance is still a prerequisite for the smooth use of the house. It is forbidden to put into use without fire control acceptance or unqualified acceptance; if other construction projects are unqualified after random inspection, there will also be a risk of stopping use. 2. In order to avoid the risk that the purpose of the contract cannot be achieved due to the failure of the fire inspection, it is recommended that the lessor and the lessee clearly agree on the subject of responsibility for fire inspection and related liability for breach of contract in the lease contract.

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