Real Estate Perspective | Analysis of the Effectiveness of a Subscription Agreement between a Developer and a Buyer without a presale Permit

Published:

2023-02-08

1. What is the commercial housing presale permit system? What is the commercial housing purchase and sale subscription contract? The commercial housing presale permit system is commonly known as "selling off-plan houses" and "selling uncompleted houses". It refers to the real estate development company that has been built or is about to be built but has not yet been completed. A real estate transaction in which the owner has the ownership of the purchased house in a certain period of time. In order to reach the above transaction, real estate development enterprises will generally reach a relevant subscription agreement with the buyer, that is, the "commercial housing purchase and sale subscription agreement", which refers to the contract concluded by the parties before signing the commercial housing presale or the on-the-spot sale contract, which is signed by the parties at a certain time in the future and confirmed by the commercial housing transaction, It is generally embodied in the form of commercial housing order, appointment, reservation and other forms. China has also made clear provisions and restrictions on the presale of commercial housing. For example, Article 45 of the the People's Republic of China Urban Real Estate Management Law stipulates that the presale of commercial housing shall meet the following conditions: 1. All the land use right transfer fees have been paid and the land use right certificate has been obtained; 2. Hold the construction project planning permit; 3. According to the commercial housing provided for presale, the funds invested in development and construction shall reach more than 25% of the total investment in the project construction, and has determined the construction progress and completion and delivery date; 4. Register the presale with the real estate management department of the people's government at or above the county level and obtain the commercial housing presale license. The commercial housing presale shall, in accordance with the relevant provisions of the State, report the presale contract to the real estate administration department and the land administration department of the people's government at or above the county level for registration and filing. Article 6 of the Measures for the Administration of the presale of Urban Commercial Housing stipulates that the presale of commercial housing shall be subject to a licensing system. To presale commercial housing, a development enterprise shall apply to the real estate management department for a presale permit and obtain a Commercial Housing presale Permit. No commercial housing presale may be carried out without the Commercial Housing presale Permit. Article 2 of the interpretation of the Supreme People's Court on Several Issues concerning the application of law in the trial of commercial housing sales contract disputes stipulates that if the seller fails to obtain the commercial housing presale license certificate, the commercial housing presale contract concluded with the buyer shall be deemed invalid, but if the commercial housing presale license certificate is obtained before the lawsuit, it can be deemed valid. The above provisions also raise a practical question: if the real estate development enterprise does not obtain the presale license, is the commercial housing subscription agreement signed with the buyer necessarily invalid? Analysis of the effectiveness of a Subscription Agreement with a home buyer 2. the developer has not obtained a presale permit (I) is a view that the subscription agreement is invalid Case 1:(2021) Yu 0108 Minchu 3444 The plaintiff Wang mou signed an "internal customization agreement" with the defendant Rui mou company in January 2018, agreeing to sell a set of houses developed by Rui mou company to the plaintiff. The plaintiff paid the defendant the corresponding purchase price as required, and the defendant promised to sign the "Commercial Housing Sales Contract" online as soon as possible, but the project has not started construction, and the online signing time promised by the defendant has repeatedly expired. After inquiry, the plaintiff learned that the project did not obtain the "commercial housing presale license", the defendant belonged to the illegal sale of real estate, and the house sold did not meet the legal sales conditions. The court held that the commercial housing presale shall implement the license system, and the development and operation enterprises shall go through the presale registration and obtain the "commercial housing presale license" when carrying out the commercial housing presale. The commercial housing presale contract concluded without meeting the conditions for the sale of the house shall be deemed invalid. In this case, the real estate involved in the case has not yet obtained the commercial housing presale license certificate, so the "internal customization agreement" signed by the plaintiff and Rui mou company is an invalid contract due to violation of legal provisions, and the invalid contract relationship of the contract has not been established since the beginning, so the court confirms that the contract signed by the plaintiff and Rui yue company is invalid; After the contract is invalid or revoked, the property acquired due to the contract shall be returned, the party at fault shall compensate the other party for the losses suffered as a result. The above view holds that the subscription agreement is invalid. Those who hold this view believe that the above-mentioned legal provisions are mandatory provisions of the law. Without obtaining a commercial housing presale license, the subscription agreement signed by both parties is invalid due to violation of the mandatory provisions of the law, and the deposit collected after the invalidity shall be in accordance with The contract is invalid and returned to the buyer. Some judges also believe that in some cases, the buyers also have faults in the middle, especially when some buyers later obtained the presale license from the developer, they also said that they could not sign a formal purchase contract because of the reasons of the buyers. Or the developer clearly informs in the subscription agreement that there is a fault in signing the subscription agreement with the developer even though the presale license has not been obtained. In this case, both parties are at fault when signing the subscription agreement. When the buyer claims to confirm that the subscription agreement is invalid, in order to safeguard the interests of both the developer and the buyer and ensure the fairness and justice of the judgment, the subscription letter should be ruled invalid. The developer returns the deposit. (II) is a view that the subscription agreement is valid Case 2:(2021) No. 166 at the beginning of the Republic of 0702, Jin Dynasty On April 17, 2018, the plaintiff Chen Mou and the defendant Jiu Real Estate Company signed an "Internal Subscription Letter", which stated the plaintiff's subscription house number, construction area, subscription unit price, subscription total price, deposit, etc. It was agreed that the subscriber should bring the internal subscription letter before June 17, 2018 unless otherwise notified by the seller, the down payment (including the paid deposit) of not less than 50% of the total contract amount of the house, the certificate and other relevant materials required for the purchase of the house, the signing of the "commercial housing sales contract" with the seller and the payment of the down payment payable, the subscriber's breach of contract, the seller has the right to dispose of the above-mentioned house separately, and the deposit paid by the subscriber will not be refunded; For the seller's breach of contract, the deposit shall be doubled. On the same day, the plaintiff paid a deposit of 20000 yuan to the defendant, the real estate company. On June 17, 2018, when the plaintiff delivered 50% of the down payment in accordance with the "Internal Subscription Letter", the defendant stated that "the house has not started construction and the down payment will not be paid", and the defendant did not sign the "Commercial Housing Sales Contract" with the plaintiff. At present, due to changes in the project, the use of the house has been changed and the purpose of the contract cannot be realized. The plaintiff requires the defendant to double the deposit of 40000 yuan. The defendant argued that the project has not yet obtained a commercial housing presale license, the validity of the subscription agreement is invalid, and the agreement on the deposit is also invalid. The court held that: according to the provisions of Article 2 of the interpretation of the Supreme People's Court on Several Issues concerning the application of law in the trial of commercial housing sales contract disputes, the seller has not obtained the commercial housing presale license certificate, and the commercial housing presale contract concluded with the buyer shall be deemed invalid. However, the "Internal Subscription Letter" signed by the plaintiff and the defendant only stipulates the house number, purchase amount, deposit, etc. subscribed by the plaintiff, and does not contain the main content of the commercial housing sales contract stipulated in Article 16 of the "Commercial Housing Sales Management Measures". Therefore, the nature of the subscription letter is a commercial housing subscription contract of an appointment nature, not a commercial housing sales contract of this nature. The subscription letter is the true intention of both the original and the defendant, and there is no statutory invalidity and should be deemed valid. Now due to the defendant's breach of contract, the purpose of the contract can not be achieved, the plaintiff asked him to double the return of the deposit, in line with the law, the court to support. The above view that the subscription agreement is valid. In this view, according to Article 495 of the the People's Republic of China Civil Code, the parties agree to conclude a contract within a certain period of time in the future, such as the subscription, order, reservation, etc., constitute an appointment contract. If one of the parties fails to perform the obligation to conclude the contract under the appointment contract, the other party may request it to bear the liability for breach of the appointment contract. Therefore, the view is that the nature of the subscription agreement for the nature of the reservation of the commercial housing subscription contract, should be valid. The author's point of view: from the point of view of the purpose and content of the subscription agreement, it is an agreement on matters such as the signing of a formal commercial housing sales contract in the future, and a commitment reached by both parties to enter into a formal commercial housing sales contract in the future. it is the true intention of both parties, creating conditions for the subsequent conclusion of this contract, and binding both parties to undertake future obligations when entering into a commercial housing sales contract. The nature of the subscription agreement is an appointment contract, which is significantly different from the contract for the sale of commercial housing in the nature of the contract, so its signing is not a formal act of commercial housing presale, so it should not be bound by whether or not to obtain a presale license. The distinction between the reservation contract for the sale of commercial housing and the contract of this contract. Of course, there are also exceptions, such as the supreme law guidance case:(2018) shan 01 min zong no 8145. in this case, the court held that although the subscription contract was essentially a commercial housing presale contract, wentian company did not actively perform its due contractual obligations under the condition that its own contractual purpose had been realized, and should be aware of the illegality of its failure to apply for a commercial housing presale license, now it filed a lawsuit in this case on the grounds of illegal facts caused by its own reasons, the real purpose is to obtain greater benefits beyond the contract expectations, and its behavior is obviously contrary to the social value orientation and public perception. In order to promote the core values of socialism and demonstrate judicial justice, such behavior should not be supported. It was finally determined that the subscription contract involved in the case was valid, and a valid legal relationship between the two parties was formed in the commercial housing presale contract. From the above, it is not difficult to see that if the developer signs an appointment contract with the buyer before obtaining a presale license, it indicates that a new contract will be determined in the future to finally clarify the specific content of a certain legal relationship between the two parties. At this time, the contract may not be valid. During the trial, the court will generally measure the interests of both parties based on the specific circumstances of the case. It must not only abide by laws and regulations, ensure the legality of the judgment, but also ensure the fairness and justice of the judgment, and make a comprehensive judgment. The purpose is not to allow offenders who try to exploit legal loopholes. Those who profit, demonstrate judicial justice, and promote the core values of socialism. 3. risk analysis For home buyers, before the presale license is obtained, the buyer signs a subscription agreement and pays the subscription fee. If the project does not progress smoothly, this will transfer the greater capital risk to the home buyer, which may cause the home buyer to lose all his money. For real estate development enterprises, although funds can be obtained for project construction by signing a commercial housing subscription agreement, they cannot sell off-plan housing before obtaining a commercial housing presale license, and their behavior is illegal. And when real estate development companies obtain presale permits, they have to face selling houses at lower housing prices, which is what real estate development companies are unwilling to face. In terms of national supervision, under the current commercial housing presale management system, the determination that the subscription agreement is valid will cause some real estate development companies to evade supervision. According to relevant regulations, the housing presale must enter the account designated by the real estate management department, and the money can only be used for project construction, but there are no corresponding regulatory measures for the funds paid according to the subscription agreement. After the real estate development company obtains the subscription funds, It may be used for other projects, which increases the risk of home buyers, is not conducive to social stability, and is not conducive to the state's supervision and regulation of the real estate industry. Therefore, when buying commercial houses and signing relevant sales contracts, buyers should raise their awareness of risk prevention. In order to protect the safety of transaction funds and their own legitimate rights and interests, buyers should carefully review the main body of commercial housing sales before signing the contract. Sales conditions, etc, whether the "five certificates" (land use right certificate, construction land planning permit, construction project planning permit, construction project construction permit, and commercial housing presale permit) of the project real estate are complete and fully examined and paid attention to, real estate development enterprises are required to show themselves the relevant certificates of legal housing transactions. When signing the subscription agreement, real estate development enterprises and buyers should pay attention to whether the agreement has the main contents and substantive requirements of the commercial housing sales contract stipulated in Article 16 of the Measures for the Administration of Commercial Housing Sales (including but not limited to the basic information of both parties, the basic information of the commercial housing, the determination method and total price of the disputed commercial housing price, the delivery date and other main contents of the commercial housing sales contract), avoid the subscription agreement is recognized as a commercial housing sales contract. If the buyer wants to leave room for himself and sign the reservation contract in advance before signing the formal contract, the buyer should carefully examine the contract and avoid the actual performance, and prevent himself from performing or accepting the other party's performance in advance, so as not to be deemed as the contract has been established.

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