Real estate perspective: the identification and priority of "consumer buyers".

Published:

2022-01-13

1. Introduction By the intensified market competition and the continued impact of the epidemic at home and abroad, some small and medium-sized real estate enterprises are not doing well, and even the capital chain is broken, debt-ridden, active or passive into bankruptcy proceedings. At this time, in order to safeguard their own interests, some buyers will claim to the bankruptcy administrator or the court to directly obtain the ownership of the property involved in the case as a consumer buyer or superior rights to other creditors, so how should they be identified in judicial practice as a consumer buyer? 2. Related Cases and Referee Views (I) consumer buyers should be living for the purpose of the buyer, if the parties based on the agreement to sign a purchase contract, the purpose of buying a house is to realize the creditor's rights, not for life, housing needs, does not belong to the consumer buyers. Therefore, it is not possible to enjoy the priority based on the status of consumer buyers. Case 1: Ding Xiaofang, Weihai Guangxin Real Estate Development Co., Ltd. and other bankruptcy claims confirmation disputes (Supreme People's Court (2020) Supreme Law Minshen No. 3340) The court held that: in accordance with Article 2 of the Supreme People's Court's Reply on the Priority of Compensation for Construction Project Prices, and Article 29 of the Provisions of the Supreme People's Court on Several Issues Concerning the Handling of Enforcement Objection and Reconsideration Cases by the People's Court, consumer The buyer of sex should be a buyer for the purpose of living and living. In this case, in the case of Lanfang's inability to repay its loan, the two parties reached an agreement to repay the debt in kind and signed the "Top House Agreement", which agreed that Guangxin Company would offset the property involved in the case to Lanfang, and made a clear agreement on the area and amount of the property. Ding Xiaofang's wife Yu Xiaoxia and Yu Lanfang are related. After Yu Lanfang's introduction, he signed the "Commercial Housing Sales Contract (presale)" with Guangxin Company and paid the corresponding money to Yu Lanfang. Based on the facts of this case, the borrowing behavior between Guangxin Company and Yu Lanfang, the behavior of repaying debts with houses, the payment behavior between Ding Xiaofang and Yu Lanfang, and the behavior of buying and selling houses between Ding Xiaofang and Guangxin Company are interrelated and inseparable. It can be considered that Ding Xiaofang formed the fact of buying houses based on the behavior of repaying debts with houses of Guangxin Company and Yu Lanfang, only when it was known that Guangxin Company gave Lanfang the real estate involved in the case and paid the house purchase money by using the principal and interest of Lanfang's loan, did it sign the Commercial Housing Sale Contract (presale) with Guangxin Company. There was no typical house sale relationship between consumers and developers between Ding Xiaofang and Guangxin Company, which was only the performance object of the house debt repayment agreement between Lanfang and Guangxin Company, the purpose of the purchase is to help Lanfang realize her creditor's rights. In addition, the court found out that Ding Xiaofang and his wife Yu Xiaoxia bought more than one set of real estate in Baidu City District. Therefore, the original court found that Ding Xiaofang was not a consumer buyer and rejected his claim for real estate transfer registration, which was not improper. Case 2: Zhou Lijuan and Changshu Xinmao Real Estate Development Co., Ltd. (hereinafter referred to as Xinmao Company) Case of Dispute over Commercial Housing Sales Contract (Jiangsu Changshu People's Court (2020) Su 0581 Minchu No. 5171) The court held that the focus of the dispute in this case is whether Zhou Lijuan belongs to a consumer buyer, whether the "commercial housing sales contract" involved in the case should continue to be performed, and whether it has been terminated. Article 2 of the Reply of the Supreme People's Court on the Priority Compensation Right of Construction Project Price stipulates that after the consumer has delivered all or most of the money for the purchase of commercial housing, the contractor shall not oppose the buyer for the priority compensation right of the project price enjoyed by the commercial housing. Article 29 of the Provisions of the Supreme People's Court on Several Issues Concerning the Handling of Execution Objection and Reconsideration Cases by the People's Court stipulates that in the execution of monetary claims, if the buyer raises an objection to the commercial housing registered in the name of the executed real estate development enterprise, which meets the following circumstances and whose rights can be excluded from execution, the people's court shall support it: (1) a legal and effective written sales contract has been signed before the people's court is sealed up; the commercial house purchased by the (II) is used for living and there is no other house for living in the name of the buyer; the price paid by the (III) exceeds the 50% of the total price agreed in the contract. With reference to the aforementioned legal provisions, Zhou Lijuan used the project funds owed by Haizhu Company to offset the purchase price, and did not actually pay the house price to Xinmao Company. The commercial housing sales contract involved in the case is a specific operation method for fulfilling the housing agreement, so Zhou Lijuan obviously does not belong to For consumer buyers, Xinmao Company has entered bankruptcy procedures. If it continues to perform the contract, it will constitute debt repayment to individual creditors, which does not comply with the law. (II) consumers should purchase houses to meet their living needs, not for business or other reasons. The buyer of the shop who has paid most of the purchase price is not for residential needs, nor is it a consumer buyer. Can not enjoy the priority based on the living needs. Case: Wang Yongmei and Zunyi Ganhao Real Estate Development Co., Ltd. General Bankruptcy Creditor's Rights Confirmation Dispute (Guizhou Zunyi Intermediate People's Court (2021) Qian 03 Min Zhong No. 2290) The court held that the focus of the dispute in this case is whether the appellant belongs to the consumer buyer. According to the provisions of Article 2 of the Reply of the Supreme People's Court on the Priority Compensation Right of Construction Project Price, "After the consumer delivers all or most of the money for the purchase of commercial housing, the contractor shall not oppose the buyer for the priority compensation right of the project price enjoyed by the commercial housing, giving priority protection to consumers who deliver all or most of the money for the purchase of commercial housing is based on the principle of social policy that survival interests outweigh business interests and special rules set up to protect consumers' right of residence. The scope of the provision should be strictly limited in its application and should not be interpreted in an expanded manner. Consumers should buy houses to meet their living needs, not for business or other reasons. In this case, according to the facts found out, both parties agreed that "Wang Yongmei purchased shops 1025 and 1026 on the first floor of building 2, sunshine waterfront phase ii developed by Ganhao company, which are used for commercial purposes". it can be seen that the nature of the house involved in the case purchased by the appellant is a shop, not for residential needs, and there is no special interest for priority protection. Therefore, the appellant believes that he has paid more than 80% of the house purchase price, and the appeal reason based on the priority protection of the personal rights of consumer house purchase cannot be established and will not be adopted. (III) the purchase of housing for the purpose of living and living, it belongs to the consumer buyer. However, if the proportion of payment does not reach the lower limit of the proportion of housing payment for consumer buyers, it can not be given priority protection as consumer buyers. Case: Liu Rongzhi and Zunyi Ganhao Real Estate Development Co., Ltd. General Bankruptcy Creditor's Rights Confirmation Dispute (Guizhou Zunyi Intermediate People's Court (2021) Qian 03 Min Zhong No. 2350) The court held that the focus of the dispute in this case is: whether the 1. Liu Rongzhi belongs to consumer housing and whether the right of residence should be given priority protection; ...... on focus one. According to Article 2 of the Reply of the Supreme People's Court on the Priority of Compensation for Construction Project Price, it is stipulated that "after the consumer has delivered all or most of the money for the purchase of commercial housing, the contractor shall not oppose the buyer for the priority of compensation for the project price enjoyed by the commercial housing, giving priority protection to consumers who deliver all or most of the money for the purchase of commercial housing is based on the principle of social policy that survival interests outweigh business interests and special rules set up to protect consumers' right of residence. The scope of the provision should be strictly limited in its application and should not be interpreted in an expanded manner. At the same time, with reference to Article 29 of the Provisions of the Supreme People's Court on Several Issues Concerning the Handling of Enforcement Objection and Reconsideration Cases by the People's Court, the People's Court shall support the following circumstances if the buyer objects to the commercial housing registered in the name of the executing real estate development enterprise during the enforcement of monetary claims: (1) A legal and effective written sales contract has been signed before the people's court seals up; the commercial house purchased by the (II) is used for living and there is no other house for living under the name of the buyer; the price paid by the (III) exceeds 50% of the total price agreed in the contract. In this case, although Liu Rongzhi and Fang Yunyun bought the house, the house price paid accounted for 43.38 of the total house price, which did not reach the lower limit of the proportion of the house price paid by consumer buyers in the aforementioned legal provisions, therefore, Liu Rongzhi believes that he belongs to the consumer buyers should be given priority protection of the appeal reason can not be established, should not be adopted. 3. Summary After the enterprise enters the bankruptcy procedure, the creditor's right relief and the protection problem is particularly prominent. At present, the Approval of the Supreme People's Court on the Priority Right to Compensation for the Price of Construction Projects has lapsed. The provisions relating to the protection of the rights and interests of "consumer buyers" are reflected in Article 29 of the newly amended 2020 Provisions of the Supreme People's Court on Several Issues Concerning the Handling of Enforcement Objection and Reconsideration Cases by the People's Court, which provides for the priority of buyers when certain conditions are met in the course of enforcement. Article 29 of the Provisions of the Supreme People's Court on Several Issues Concerning the Handling of Execution Objection and Reconsideration Cases by the People's Court stipulates that in the execution of monetary claims, if the buyer raises an objection to the commercial housing registered in the name of the executed real estate development enterprise and meets the following circumstances and its rights can be excluded from execution, the people's court shall support it: (1) a legal and effective written sales contract has been signed before the people's court is sealed up; the commercial house purchased by the (II) is used for living and there is no other house for living in the name of the buyer; the price paid by the (III) exceeds the 50% of the total price agreed in the contract. Compared with the past, the court's determination of consumer buyers is more stringent. If the housing sales contract is essentially a debt-for-property agreement, the purchase of a house for the purpose of eliminating monetary debts, regardless of whether the house used for debt repayment is a residential or commercial house such as a shop. For housing, buyers cannot be recognized as consumer buyers and enjoy priority. The buyer of the shop who has paid most of the house purchase price is not for residential needs, nor can he enjoy the priority based on the needs of residential survival. Even if the purchase of housing for the purpose of living. However, if the proportion of the house price paid to the total house price does not reach the lower limit of the proportion of the house price paid by the consumer buyer in the aforementioned legal provisions, it cannot be given priority protection as a consumer buyer.

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