Real estate perspective: the effectiveness of the "housing debt" agreement signed by real estate enterprises.

In the past year since the implementation of the "three red lines" policy, the underlying logic of the real estate industry has undergone fundamental changes. Affected by the increase in control rules, coupled with the impact of the epidemic, the narrowing of loan policy and other reasons, some real estate enterprises in the face of financial pressure, commercial housing may be delayed delivery and other conditions, will take a variety of coping strategies, including "housing debt" way to finance or pay off the project and other debts. By studying the relevant judgments of "house-to-house debt" in recent years, the author found that the court has no uniform rules for determining the legal nature and validity of the "house-to-house debt" agreement, and the appeal rate of cases is high and there are often subversive judgments between different trial-level courts. Therefore, real estate companies need to further clarify its legal effect when signing the "house-to-debt" agreement, in order to better play the role of the "house-to-debt" agreement as a debt alternative performance plan or financing method, and help real estate companies solve the root cause. problem.

The "house-to-house" agreement belongs to the category of debt-to-property, debt-to-property is an agreement between the parties on the debt and debt relationship that has been or will be established, when the agreed conditions are achieved or the agreed period expires, the creditor receives other kinds of payment to replace the original payment, and then the original debt and debt relationship is eliminated. This paper will explore the legal effect of the "house-to-house debt" agreement signed between the housing enterprise and other creditors such as the buyer or construction unit in different circumstances through case and legal analysis.

A house-to-house debt-to-debt agreement signed after the expiration of the (I)'s debt performance period.

1. Case No.:(2019) Yuemin Zhong No. 2730

Case introduction: Guo Shengcui once bought room 3-Cx3 in Tao X residential area developed by Yihai Company at the price of 4.7 million yuan. For some reason, both parties reached a "check-out agreement" through negotiation. Both parties agreed to terminate the "commercial housing sales contract". Yihai Company returned Guo Shengcui's purchase price of 4.7 million yuan and compensated Guo Shengcui for the loss of 500000 yuan. Subsequently, both parties signed a loan contract, and the above-mentioned check-out payment of 5.2 million yuan was converted into a loan. Guo Shengcui lent RMB 1.8 million yuan to Yihai Company, with a total loan amount of RMB 7 million yuan for a period of one year until July 4, 2013. On October 1, 2013 after the expiration of the performance period, Guo Shengcui and Yihai Company signed two "Guangdong Province Commercial Housing Sales Contracts", agreeing that Guo Shengcui would purchase houses 5-Ax7 and 5-Bx7 in Tao X Community of Yihai Company for 3 million yuan and 4 million yuan respectively. Yihai Company should deliver the above two commercial houses to Guo Shengcui for use before December 31, 2014, and went through the real estate presale registration with the government department on May 15, 2014, however, Yihai Company has never been able to complete the delivery of the house, so Guo Shengcui filed a lawsuit with the court to confirm that the two "Guangdong Province Commercial Housing Sales Contracts" signed with Yihai Company were legal and valid, and ordered Yihai Company to continue to perform the commercial housing sales contract.

The court held that there was a loan contract relationship between the plaintiff Guo Shengcui and Yihai Company. After the expiration of the loan period, the "Commercial Housing Sales Contract" was signed through negotiation, and the original loan principal of 7 million yuan was paid off as the purchase price of the commercial housing. After the two sides to the real estate management department for the presale registration procedures. With reference to the trial guidelines of the Supreme People's Court guiding case No. 72, the parties in this case transformed the loan contract relationship into a commercial housing sales contract relationship, and converted the principal and interest of the loan into the paid purchase price. The basic conditions of the commercial housing, the total price of the commercial housing, unit price, payment method and time, delivery conditions and date, etc. stipulated in the signed "Commercial Housing Sales Contract" have the necessary terms of the commercial housing sales contract. The "Commercial Housing Sales Contract" is the true intention of both parties. The content does not violate the mandatory provisions of laws and administrative regulations and should be deemed legal and effective. Therefore, the basic legal relationship between the parties in this case is the contract relationship for the sale of commercial housing. Yihai Company claims that the basic legal relationship in this case is the loan contract relationship, which is inconsistent with the facts. And the "loan contract" and "commercial housing sales contract" on the two sets of real estate mortgage guarantee, does not conform to the "the People's Republic of China Guarantee Law" on the "liquid contract prohibition" situation. Therefore, Yihai's above claims lack legal basis. The basic legal relationship between the plaintiff Guo Shengcui and Yihai Company is the relationship between the sale and purchase of commercial housing, which is based on sufficient evidence and is not improper. The Court supports the continued performance of the contract for the sale and purchase of commercial housing.

2. Case No.:(2021) Lu 02 Min Zhong No. 3021

The court held that this case involved three debt-for-property agreements reached after the expiration of the performance period, namely, the "Project Payment Agreement" signed between Boyang Real Estate Company and CCCC No. 1 Aviation Bureau No. 2 Company, the "Agreement" signed between CCCC No. 1 Aviation Bureau No. 2 Company Jian'an Branch and Zhonglian Concrete Company, and the "Housing Payment Agreement" signed between Zhonglian Concrete Company and Jiao Mingzhi. The three debt-for-property agreements were agreed by the parties, and the meaning was true. The content of the agreement did not violate the mandatory provisions of laws and administrative regulations, and was established and valid in accordance with the law. An agreement reached by the parties after the expiration of the debt settlement period may constitute a change of debt, I .e. the creation of a new debt and the elimination of the old debt, or it may be a new debt settlement, I .e. the creation of a new debt, which coexists with the old debt. Based on the concept of protecting claims, the change of debt generally requires the parties' clear agreement to eliminate the old debt, otherwise, the nature of the debt settlement agreement reached by the parties after the expiration of the debt settlement period should generally be the new debt settlement. In other words, after the expiration of the debt settlement period, the creditor and the debtor signed a debt-to-debt agreement, if not agreed to eliminate the original money payment debt, should be found to be the parties to add a separate way of performance of the debt, rather than the original money payment of the debt. In the new debt settlement, the new debt as a method of performance of the old debt, the creditor in principle should first request the performance of the new debt. If the debtor fails to perform the new debt, the creditor may either continue to perform and default on the basis of the new debt claim, or resume the performance of the old debt. In this case, although Boyang Real Estate Company signed the "Paris No.1 Subscription Agreement" with Jiao Mingzhi on the house involved in the case and delivered the house involved to Jiao Mingzhi, the law of debt repayment in property was taken as the promise contract. "Delivery of property" does not mean "transfer of ownership". As the house involved in the case is real estate, Boyang Real Estate Company only delivered the house involved to Jiao Mingzhi is not enough to realize the purpose of settlement, this purpose can only be achieved after the transfer of the house involved is registered in the name of Jiao Mingzhi. By the same token, Jiao Mingzhi is fundamentally different from the expectation right of property rights arising from the purchase and sale based on the agreement of debt in rem, and his enjoyment as a creditor is still essentially a debt of money and should not take precedence over another debt of money, so the trial court ruled in accordance with the law to reject his objection to enforcement. At present, the new debt arising from the debt-for-property agreement cannot be implemented due to the fact that Boyang Real Estate Company was enforced by the original court to enforce the house involved. Jiao Mingzhi is also unable to realize the purpose of the debt-for-property agreement. He requests to cancel the "debt-for-property agreement" signed with Zhonglian Concrete Company, which contains the payment for xx households in Unit xx, Building xx, Paris 1, Chengyang District, Qingdao City. The reason is justified and should be supported. Based on the relativity of the contract and the principle of settlement of the new debt, Jiao Mingzhi has the right to resume the performance of the old debt, which requires Zhonglian Concrete Company to return 1443978.9 yuan to support it, but it needs to be clear that the nature of the money is not the purchase of the house but the material money.

The (II) debt settlement agreement signed before the expiration of the debt performance period.

Case No.:(2021) Liao 01 min zong No. 2393

The court held that article 45 of the minutes of the national court's civil and commercial trial work conference stipulates that if the parties reach an agreement on debt relief before the expiration of the debt performance period, the debt relief has not yet been delivered to the creditor, and the creditor requests the debtor to deliver it, the people's court shall explain to it that it shall bring a lawsuit according to the original creditor's right and debt relationship. If the parties still refuse to change their claims after the interpretation, they shall reject their claims, but this shall not affect their filing of separate proceedings based on the original creditor's rights and debts. Liaoning construction group co., ltd. admitted in the second instance that as of August 3, 2013, Liaoning fulespu real estate development co., ltd. had not settled with Liaoning fulespu real estate development co., ltd. and the amount of project funds still owed by Liaoning fulespu real estate development co., ltd. was not clear. at this time, the debt performance period for Liaoning fulespu real estate development co., ltd. to pay Liaoning construction group co, therefore, there is only a credit and debt relationship between Liaoning Construction Engineering Group Co., Ltd. and Liaoning Fulespu Real Estate Development Co., Ltd., and Liaoning Construction Engineering Group Co., Ltd. has no right to require Liaoning Fulespu Real Estate Development Co., Ltd. to deliver the house involved in the case. The court of first instance confirmed that Liaoning Construction Engineering Group Co., Ltd. does not have ownership of the house involved in the case.

(III) the nature of the mortgage agreement is a non-contract or a practical contract.

1. Practical Contract-(2021) Liao 01 Min Zhong No. 12130

The court held that: to the housing debt contract as a practical contract, so the housing debt must be completed to complete the housing change registration procedures. Thus, the original claim between the creditor and the debtor is not extinguished by the agreement to settle the debt with the house, and in the debt with the house only the property is registered and the debtor is extinguished. Only the consent of the house to pay the debt, but not the transfer of property rights to the debt-relief house, the original claim has not been eliminated, the purpose of the debt can not be achieved. After verification by our hospital, the two houses involved in the case are still registered in the name of the defendant Xinyijiang Company (construction unit). Although the plaintiff Li Dengfu signed an offset agreement with the partner of the defendant Metallurgical Company (construction unit) and issued a receipt, the plaintiff did not actually possess or transfer the house involved in the case to the plaintiff's name, so the creditor's rights enjoyed by the plaintiff have not been eliminated, the court does not support the defendant's metallurgical company's defense of 6074475 yuan in debt with housing. The court of second instance on the issue of whether the agreement to settle the debt with the house has actually been fulfilled. The appellant's 12th Metallurgical Company believed that the two houses had been priced at 6074475 yuan to cover the project price. However, the two houses involved in the case have now been sold to outsiders and occupied by outsiders. Li Dengfu has not actually received or controlled the houses, and the appellant has not provided evidence to prove that Li Dengfu had received the houses involved and occupied them. The appellant, as the party who used the house to offset the debt, has the obligation to track, understand and control the situation of the house to offset the top of the project, and ensure the implementation of the agreement on the top of the house. The current house has not been registered in Li Dengfu's name, nor has it actually delivered to Li Dengfu. The conditions for Li Dengfu to obtain the ownership of the house are not available now, so the agreement on the actual implementation, the appellant's 12th Metallurgical Company claimed that the two houses had been priced at 6074475 yuan to cover the project price, which had no factual basis and was not supported by the court.

2. Nuocheng Sex Contract-(2021) Yu 10 Min Zhong No. 787

The court held that after Wang Gaofeng, Wang Xiaoyan, Hao Shuai Bing and Volkswagen Company reached the "Liquidation Agreement for the Withdrawing of Fairview Jiayuan Commercial Building Project", Hao Shuai Bing failed to pay part of the project payment obligations as agreed. However, after negotiation, Hao Shuai Bing, Wang Gaofeng and Wang Xiaoyan reached a separate agreement to settle debts with houses. Wang Xiaoyan has signed a commercial housing sales contract with Kaixiang Company, the seller of real estate and parking space, and paid a housing maintenance fund. The agreement on the settlement of the house debt is a non-contract, except for the express agreement of the parties, the agreement on the settlement of the house debt signed by the parties after the expiration of the settlement period of the project does not take the creditor's realistic receipt of the debt, or the acquisition of property rights such as the ownership and use of the debt, as an element of establishment or entry into force. The contract is valid as long as the parties' intentions are true and the contents of the contract do not violate the mandatory provisions of laws and administrative regulations. Therefore, Hao Shuaibing and Wang Gaofeng and Wang Xiaoyan reached a valid agreement to repay debts with houses, and Wang Xiaoyan signed a commercial housing sales contract with Kaixiang Company and paid a residential maintenance fund. The purpose of the contract can basically be realized. Therefore, it is not improper for the court of first instance not to support 1133952 yuan in Wang Gaofeng and Wang Xiaoyan's litigation request. On the question of whether Hao Shuaibing should support the overdue payment liquidated damages, although the Liquidation Agreement for the Project of Jinxiu Jiayuan Commercial Building stipulates the overdue payment liquidated damages, Wang Gaofeng, Wang Xiaoyan and Hao Shuaibing later reached an agreement on the payment of unpaid project funds. The agreement on the payment of overdue payment did not clearly stipulate whether the liquidated damages agreed in the previous agreement still need to be paid. Therefore, the court of first instance determined that both parties had formed new debts, it is not improper not to support the late payment liquidated damages agreed upon in the performance of the new debt. For the remaining amount of 288648 yuan because Hao Shuaibing did not pay on time, so he should bear the liability for breach of contract, the court of first instance to the National Interbank Lending Center announced the same period four times the one-year loan market quotation rate as the calculation standard.

The effect of the above-mentioned illustration divides the court's rules for determining the validity of a home-to-home debt agreement in accordance with the conclusion of a home-to-home debt agreement before/after the expiration of the period of performance of the debt. The internal logic is that if the debtor is eager to repay the debt before the expiration of the debt performance period, there may be a certain cognitive deviation between the amount of house price and the actual amount of debt. Therefore, the court will consider the legal effect of the agreement in combination with laws and regulations and the actual situation when determining the agreement signed before the expiration of the performance period. After the expiration of the period of performance of the debt, the conclusion of the debt-to-debt agreement is the agreement reached by both parties in the case of the value of the debt and the amount of the debt to be determined, as long as there is no malicious harm to the interests of third parties and other reasons, the court will support the delivery of the debt. The following is a description of the common principles of "house-to-house debt" treatment under existing laws:

A house-to-house debt-to-debt agreement signed after the expiration of the (I)'s debt performance period.

Article 410 of the Civil Code stipulates the conditions, methods and procedures for the realization of the mortgage right, that is, if the debtor fails to perform the debt due or the realization of the mortgage right agreed by the parties, the mortgagee may agree with the mortgagor to pay the mortgaged property at a discount or at the price of the proceeds from the auction or sale of the mortgaged property. If the agreement harms the interests of other creditors, the other creditors may request the people's court to revoke the agreement. If the mortgagee and the mortgagor fail to reach an agreement on the manner in which the mortgage is realized, the mortgagee may request the people's court to auction or sell the mortgaged property. In addition, the "Minutes of the National Court Civil and Commercial Trial Work Conference" (Law [2019] No. 254, hereinafter referred to as the "Ninth People's Conference Minutes") 44 stipulates: "The parties reach an agreement to offset the debt with property after the expiration of the debt performance period. If the creditor has not yet delivered to the creditor, and the creditor requests the debtor to deliver it, the people's court should focus on examining whether the debt-in-property agreement maliciously damages the legitimate rights of the third party. After examination, if the above circumstances do not exist and there are no other invalid reasons, the people's court shall support it in accordance with the law."

After the expiration of the debt term, the two parties carried out reconciliation and liquidation, and reached an agreement on the transformation of the loan contract relationship into a housing sales contract relationship, the parties signed a housing debt-to-debt agreement to eliminate the original debt and debt relationship, the establishment of a new sales contract relationship, the occurrence of debt changes. Therefore, the creditor has the right to require the debtor to deliver the house under the house-to-debt agreement.

The (II) debt settlement agreement signed before the expiration of the debt performance period.

1. When the original creditor's rights and debts occur, the house purchase and sale contract/debt-for-property agreement is signed at the same time as the debt relationship is formed, but the house has not been transferred and registered to the creditor's name (the house has not been transferred), which is generally recognized as "post-assignment and guarantee". The parties have no right to directly request the court to deliver the house. Such disputes shall be handled according to the original creditor's rights and debt relationship. However, in the enforcement procedure, the creditor may apply for an auction of the debt-relief house, but does not enjoy the right of priority payment.

2. At the time of the occurrence of the original creditor's rights and debts, the house purchase contract/debt-for-property agreement was signed at the same time as the debt relationship was formed, and the house was registered in the creditor's name (the property has been transferred), making the creditor the owner of the property, which is generally recognized as the transfer of the property. The debtor has the right to buy back the property when paying off the debt. The concession and guarantee is a kind of "prior transfer", and when the creditor's right is realized, the creditor returns the property to the debtor. If the debtor fails to repay the debt on time, the court shall not support the creditor's request to confirm that the property belongs to it, but the court shall support the creditor or the debtor's request to repay the debt at a discount on the sale of the property.

The legal nature of the "house-to-debt" agreement in (III).

Combined with the above cases, it can be seen that there are great differences in the legal nature of the "house-to-debt" agreement in judicial practice. Some views believe that the "house-to-debt" agreement is a practical contract and has essential properties. If only the house-to-debt agreement does not actually change the property right of the house (transfer of property rights), the contract will not take effect. Another view is that the "home-to-home" agreement is a non-contract, and if the parties do not specifically agree on the conditions for entry into force, it is established and effective from the time the parties reach an agreement.

The nature of the "house-to-debt" agreement is a practical contract or a non-contract, which determines whether the "house-to-debt" agreement is established and effective in the event that the debt-to-debt has not yet been delivered or the property registration has not yet been changed, which is of great significance to the form and consequences of liability. In the Minutes of the Ninth People's Meeting issued by the Supreme Court, the issues related to "debt in kind" are covered in articles 44, 45 and 71. Among them, it is clear that the debt-for-goods contract is a contract, but also for the common risks and applicable measures in judicial practice, to a certain extent, unified the rules of judgment.

All in all, for real estate companies, the purpose of signing a "house-to-house debt" agreement with other debtors such as buyers and construction units is to raise funds or ease the current tension. Therefore, the signing of a house-to-house debt agreement must carefully review the details of the contract to reduce The risk of litigation ensures the smooth performance of the "house-to-debt" agreement.