Real Estate Perspective | How to understand the accompanying information requirements for the delivery of commercial housing?
Published:
2023-02-14
The delivery of commercial housing has a very important legal significance in the contract of sale of commercial housing, and it is also one of the main obligations of real estate developers to fulfill the contract of sale of commercial housing. For the delivery requirements of commercial housing, many laws and regulations or local normative documents in China have corresponding provisions or guiding requirements. However, up to now, there are still many disputes about the delivery of commercial housing, which lead to endless disputes about the delivery of commercial housing. Among them, there are not only the reasons of substantive delivery conditions, such as unqualified quality of commercial housing, infrastructure not meeting the needs of basic living functions, but also the reasons of formal delivery conditions, such as the real estate developer did not make a written delivery notice, did not provide housing mapping reports and other delivery accompanying information. From the perspective of real estate developers, how to understand and meet the accompanying information requirements of commercial housing delivery, this paper will discuss and analyze related issues. Common types of accompanying materials According to the legal provisions of our country and the common agreements in commercial housing sales contracts, real estate developers usually need to show or provide the following accompanying materials when delivering houses: 1. Completion acceptance filing documents; 2. "Residential quality Guarantee" and "Residential use Manual" (commonly referred to as "two books");3. Housing surveying and mapping report; 4. Written delivery notice. The above-mentioned accompanying materials have certain independent value, which is not only based on legal provisions and contractual agreements, but also as important evidence for real estate developers to meet the substantive delivery conditions. Completion acceptance filing documents with data Article 61 of the "Construction Law" stipulates: "A construction project can only be delivered for use after it has been completed and accepted; if it has not been accepted or failed, it shall not be delivered for use." Article 16 of the Regulations on the Quality Management of Construction Projects stipulates: "Construction projects can only be delivered for use after they have been completed and accepted." Article 27 of the "Urban Real Estate Management Law" stipulates: "Real estate development projects can only be delivered for use after they have been completed and passed the acceptance." Article 17 of the regulations on the Management of Urban Real Estate Development and Operation stipulates: "after the completion of a real estate development project, it can be delivered for use only after it has passed the acceptance in accordance with the regulations on the quality Management of Construction projects." According to the above provisions, it can be seen that the completion acceptance is the basic delivery condition clearly stipulated by law. The quality of commercial housing and the construction of supporting facilities are related to the safety of people's lives and property and living and working in peace and contentment, so the government needs to manage them effectively. The completion acceptance filing document is the result of the construction administrative department's decision to approve the filing after reviewing the application materials and project status of real estate developers, which has high credibility, therefore, the filing documents for the completion and acceptance of commercial housing issued by it are an important basis for proving that the commercial housing has passed the acceptance. In judicial practice, many courts will obtain the completion acceptance filing documents as the legal minimum delivery conditions for the delivery of construction projects. Residential Quality Guarantee with Data and "residential use instructions" Article 30 of the "Regulations on the Management of Urban Real Estate Development and Operation": "Real estate development enterprises shall provide the purchaser with a residential quality guarantee and a residential instruction manual when the commercial housing is delivered for use." Article 3 of the provisions on the system of residential quality guarantee and residential use instructions for commercial residential buildings: "when real estate development enterprises deliver new commercial residential buildings for sale to users, they must provide residential quality guarantee and residential use instructions." Article 10 of the provisions on the implementation of the residential quality guarantee and residential instruction manual system for commercial housing: "the residential quality guarantee and the residential instruction manual shall be provided to the user at the same time when the residence is delivered to the user." "Shandong Province New Commercial Housing Sales Contract (presale) Model Text" Article 9 Commercial Housing Delivery Conditions: "If the commercial housing is residential, the seller must also provide the" Residential Use Manual "and" Residential Quality Guarantee ". Based on the above provisions, it can be seen that the "Residential Quality Assurance" and "Residential User Manual" provided by real estate developers are mandatory provisions of administrative regulations and rules, and there are usually similar clear agreements in commercial housing sales contracts, and real estate developers should strictly abide by them. In judicial practice, some local courts believe that if real estate developers cannot provide both the "Residential Quality Guarantee" and the "Residential User Manual" at the time of delivery, they should bear the responsibility for overdue delivery. For example, the "Anhui Higher People's Court" Article 1, paragraph 6 of the Guiding Opinions on the Application of Legal Issues in the Trial of Disputes over Housing Sales Contracts states: "The house purchase and sale contract stipulates that the seller must provide documents such as the" Residential Quality Guarantee "and" Residential Use Manual "when delivering the house. If the seller fails to provide the above documents when actually delivering the house, the buyer has the right to refuse to accept the house". Housing Surveying and Mapping Report with Data Article 34, paragraph 1, of the "Measures for the Administration of Commercial Housing Sales" stipulates: "Real estate development enterprises shall entrust units with real estate surveying and mapping qualifications to carry out surveying and mapping according to the project before the commercial housing is delivered for use. The surveying and mapping results are reported to the real estate administrative department for review and used for housing ownership registration." Article 9 of the Model Text of Sales Contract (presale) for Newly-built Commercial Housing in Shandong Province: "Conditions for the delivery of commercial housing: the commercial housing shall meet the following conditions when it is delivered:... 2. The commercial housing has obtained the housing surveying and mapping report". Based on the above provisions and agreements, it can be seen that there is no mandatory law to stipulate that the housing surveying and mapping report is one of the delivery conditions, but the provision of housing surveying and mapping report is usually one of the delivery conditions clearly agreed in the commercial housing sales contract. Based on the principle of agreement priority, if the real estate developer fails to provide the housing surveying and mapping report as agreed upon when the commercial housing is delivered, some local courts will tend to think that the agreed delivery conditions are not met, the buyer has the right to require the real estate developer to bear the liability for breach of contract on the grounds that it does not meet the delivery conditions stipulated in the contract. Notice of written delivery of accompanying information Article 8, paragraph 2, of the "Judicial Interpretation of Commercial Housing Sales Contracts" stipulates: "If the buyer receives the seller's written delivery notice and refuses to accept it without proper reasons, the risk of damage or loss of the house shall be determined from the written delivery notice. The buyer shall bear the date of use, unless otherwise provided by law or otherwise agreed by the parties." The (II) paragraph of Article 9 of the "Model Text of the Sales Contract (presale) for Newly Built Commercial Housing in Shandong Province": "After the commercial housing meets the delivery conditions agreed in Articles 9 and 10, the seller shall, before the expiration of the delivery date (not less than 10 days), deliver the notice of the time of inspection of the house, the time and place of handling the delivery formalities and the documents and materials that should be carried to the buyer (postal express, registered mail, SMS, e-mail, etc.)." In judicial practice, many local courts believe that the real estate developer, as the owner of the commercial housing, is the first responsible subject of whether the housing has been completed, whether the completion acceptance is qualified and the delivery conditions are met. The buyer can only confirm the specific handover time of the commercial housing after receiving the written notice from the real estate developer. Therefore, the "written delivery notice" is the obligation of the real estate developer, it will lead to the buyers not knowing the specific time of house collection and unable to collect the house in time. This inaction damages the interests of the buyers and should bear the corresponding liability for breach of contract according to law. The author thinks that the above point of view is questionable, commercial housing sales contract usually has a clear agreement on the delivery time of the house, and the delivery location, based on the characteristics of real estate can be judged to be the location of the commercial housing, so whether the buyer receives a written notice of delivery will not substantially damage the rights and interests of buyers. However, as one of the important evidences for real estate developers to fulfill their delivery obligations on time, and written notice also marks the milestone significance of starting to fulfill their delivery obligations, the author still suggests that real estate developers attach great importance to the performance management of written delivery notice. Proposals for delivery of accompanying materials by real estate developers After the commercial housing has met the substantive delivery conditions stipulated in the law and the contract, the accompanying materials mentioned in this article should not be taken lightly. It is suggested that real estate developers should do a good job in relevant delivery management in the following aspects: 1. Apply to the construction administrative department in time for completion acceptance filing and obtain relevant filing documents before delivery; 2. Send written delivery notice to the buyer according to the address agreed in the commercial housing contract in time, and properly retain relevant delivery documents; 3. When handing over the house to the buyer, the real estate developer shall show the completion acceptance filing documents to the buyer, provide the "Residential Quality Assurance", "Residential Use Manual" and the housing surveying and mapping report, and show and hand over the above documents one by one Confirm and record.
The delivery of commercial housing has a very important legal significance in the contract of sale of commercial housing, and it is also one of the main obligations of real estate developers to fulfill the contract of sale of commercial housing. For the delivery requirements of commercial housing, many laws and regulations or local normative documents in China have corresponding provisions or guiding requirements. However, up to now, there are still many disputes about the delivery of commercial housing, which lead to endless disputes about the delivery of commercial housing. Among them, there are not only the reasons of substantive delivery conditions, such as unqualified quality of commercial housing, infrastructure not meeting the needs of basic living functions, but also the reasons of formal delivery conditions, such as the real estate developer did not make a written delivery notice, did not provide housing mapping reports and other delivery accompanying information. From the perspective of real estate developers, how to understand and meet the accompanying information requirements of commercial housing delivery, this paper will discuss and analyze related issues.
Common types of accompanying materials
According to the legal provisions of our country and the common agreements in commercial housing sales contracts, real estate developers usually need to show or provide the following accompanying materials when delivering houses: 1. Completion acceptance filing documents; 2. "Residential quality Guarantee" and "Residential use Manual" (commonly referred to as "two books");3. Housing surveying and mapping report; 4. Written delivery notice. The above-mentioned accompanying materials have certain independent value, which is not only based on legal provisions and contractual agreements, but also as important evidence for real estate developers to meet the substantive delivery conditions.
Completion acceptance filing documents with data
Article 61 of the "Construction Law" stipulates: "A construction project can only be delivered for use after it has been completed and accepted; if it has not been accepted or failed, it shall not be delivered for use." Article 16 of the Regulations on the Quality Management of Construction Projects stipulates: "Construction projects can only be delivered for use after they have been completed and accepted." Article 27 of the "Urban Real Estate Management Law" stipulates: "Real estate development projects can only be delivered for use after they have been completed and passed the acceptance." Article 17 of the regulations on the Management of Urban Real Estate Development and Operation stipulates: "after the completion of a real estate development project, it can be delivered for use only after it has passed the acceptance in accordance with the regulations on the quality Management of Construction projects."
According to the above provisions, it can be seen that the completion acceptance is the basic delivery condition clearly stipulated by law. The quality of commercial housing and the construction of supporting facilities are related to the safety of people's lives and property and living and working in peace and contentment, so the government needs to manage them effectively. The completion acceptance filing document is the result of the construction administrative department's decision to approve the filing after reviewing the application materials and project status of real estate developers, which has high credibility, therefore, the filing documents for the completion and acceptance of commercial housing issued by it are an important basis for proving that the commercial housing has passed the acceptance. In judicial practice, many courts will obtain the completion acceptance filing documents as the legal minimum delivery conditions for the delivery of construction projects.
Residential Quality Guarantee with Data
and "residential use instructions"
Article 30 of the "Regulations on the Management of Urban Real Estate Development and Operation": "Real estate development enterprises shall provide the purchaser with a residential quality guarantee and a residential instruction manual when the commercial housing is delivered for use." Article 3 of the provisions on the system of residential quality guarantee and residential use instructions for commercial residential buildings: "when real estate development enterprises deliver new commercial residential buildings for sale to users, they must provide residential quality guarantee and residential use instructions." Article 10 of the provisions on the implementation of the residential quality guarantee and residential instruction manual system for commercial housing: "the residential quality guarantee and the residential instruction manual shall be provided to the user at the same time when the residence is delivered to the user." "Shandong Province New Commercial Housing Sales Contract (presale) Model Text" Article 9 Commercial Housing Delivery Conditions: "If the commercial housing is residential, the seller must also provide the" Residential Use Manual "and" Residential Quality Guarantee ".
Based on the above provisions, it can be seen that the "Residential Quality Assurance" and "Residential User Manual" provided by real estate developers are mandatory provisions of administrative regulations and rules, and there are usually similar clear agreements in commercial housing sales contracts, and real estate developers should strictly abide by them. In judicial practice, some local courts believe that if real estate developers cannot provide both the "Residential Quality Guarantee" and the "Residential User Manual" at the time of delivery, they should bear the responsibility for overdue delivery. For example, the "Anhui Higher People's Court" Article 1, paragraph 6 of the Guiding Opinions on the Application of Legal Issues in the Trial of Disputes over Housing Sales Contracts states: "The house purchase and sale contract stipulates that the seller must provide documents such as the" Residential Quality Guarantee "and" Residential Use Manual "when delivering the house. If the seller fails to provide the above documents when actually delivering the house, the buyer has the right to refuse to accept the house".
Housing Surveying and Mapping Report with Data
Article 34, paragraph 1, of the "Measures for the Administration of Commercial Housing Sales" stipulates: "Real estate development enterprises shall entrust units with real estate surveying and mapping qualifications to carry out surveying and mapping according to the project before the commercial housing is delivered for use. The surveying and mapping results are reported to the real estate administrative department for review and used for housing ownership registration." Article 9 of the Model Text of Sales Contract (presale) for Newly-built Commercial Housing in Shandong Province: "Conditions for the delivery of commercial housing: the commercial housing shall meet the following conditions when it is delivered:... 2. The commercial housing has obtained the housing surveying and mapping report". Based on the above provisions and agreements, it can be seen that there is no mandatory law to stipulate that the housing surveying and mapping report is one of the delivery conditions, but the provision of housing surveying and mapping report is usually one of the delivery conditions clearly agreed in the commercial housing sales contract. Based on the principle of agreement priority, if the real estate developer fails to provide the housing surveying and mapping report as agreed upon when the commercial housing is delivered, some local courts will tend to think that the agreed delivery conditions are not met, the buyer has the right to require the real estate developer to bear the liability for breach of contract on the grounds that it does not meet the delivery conditions stipulated in the contract.
Notice of written delivery of accompanying information
Article 8, paragraph 2, of the "Judicial Interpretation of Commercial Housing Sales Contracts" stipulates: "If the buyer receives the seller's written delivery notice and refuses to accept it without proper reasons, the risk of damage or loss of the house shall be determined from the written delivery notice. The buyer shall bear the date of use, unless otherwise provided by law or otherwise agreed by the parties." The (II) paragraph of Article 9 of the "Model Text of the Sales Contract (presale) for Newly Built Commercial Housing in Shandong Province": "After the commercial housing meets the delivery conditions agreed in Articles 9 and 10, the seller shall, before the expiration of the delivery date (not less than 10 days), deliver the notice of the time of inspection of the house, the time and place of handling the delivery formalities and the documents and materials that should be carried to the buyer (postal express, registered mail, SMS, e-mail, etc.)."
In judicial practice, many local courts believe that the real estate developer, as the owner of the commercial housing, is the first responsible subject of whether the housing has been completed, whether the completion acceptance is qualified and the delivery conditions are met. The buyer can only confirm the specific handover time of the commercial housing after receiving the written notice from the real estate developer. Therefore, the "written delivery notice" is the obligation of the real estate developer, it will lead to the buyers not knowing the specific time of house collection and unable to collect the house in time. This inaction damages the interests of the buyers and should bear the corresponding liability for breach of contract according to law. The author thinks that the above point of view is questionable, commercial housing sales contract usually has a clear agreement on the delivery time of the house, and the delivery location, based on the characteristics of real estate can be judged to be the location of the commercial housing, so whether the buyer receives a written notice of delivery will not substantially damage the rights and interests of buyers. However, as one of the important evidences for real estate developers to fulfill their delivery obligations on time, and written notice also marks the milestone significance of starting to fulfill their delivery obligations, the author still suggests that real estate developers attach great importance to the performance management of written delivery notice.
Proposals for delivery of accompanying materials by real estate developers
After the commercial housing has met the substantive delivery conditions stipulated in the law and the contract, the accompanying materials mentioned in this article should not be taken lightly. It is suggested that real estate developers should do a good job in relevant delivery management in the following aspects: 1. Apply to the construction administrative department in time for completion acceptance filing and obtain relevant filing documents before delivery; 2. Send written delivery notice to the buyer according to the address agreed in the commercial housing contract in time, and properly retain relevant delivery documents; 3. When handing over the house to the buyer, the real estate developer shall show the completion acceptance filing documents to the buyer, provide the "Residential Quality Assurance", "Residential Use Manual" and the housing surveying and mapping report, and show and hand over the above documents one by one Confirm and record.
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