Real estate perspective: interpretation of the legal relationship related to the market-oriented resettlement of housing expropriation.
Published:
2021-06-20
Housing expropriation and market-oriented resettlement (hereinafter referred to as "market-oriented resettlement"), residential housing expropriation on state-owned land and collective land expropriation and resettlement, through the control of resettlement housing construction, to solve the housing problem with commercial housing market housing. Market-oriented housing resettlement reduces the government's resettlement pressure, meets the diverse housing needs of the demolished, and also promotes the healthy development of the real estate industry. At present, many local governments have successively issued relevant plans to guide the market-oriented resettlement of urban villages. In addition to monetary compensation or property rights exchange, the expropriated can also choose the way of housing ticket resettlement. The government will convert the houses that should be resettled into fund vouchers and issue them to the resettlement objects in the form of housing settlement documents (hereinafter referred to as "housing tickets"), the resettlement object holds the room ticket to purchase commercial housing from the real estate development enterprise within a specific range, and then the government settles the price value of the house to the real estate development enterprise. In the process of market-oriented resettlement, there are legal relations between the three subjects, that is, the legal relationship between the government and the resettlement object, the legal relationship between the resettlement object and the real estate development enterprise, the legal relationship between the government and the real estate development enterprise. According to the relevant business currently handled, the author interprets the relevant legal relationship in the process of market-oriented resettlement as follows:
The legal relationship between the 1. government and the resettlement object of the expropriation and resettlement compensation.
The resettlement object voluntarily chooses the house ticket resettlement method, and signs the Housing Resettlement Compensation Agreement with the government in accordance with the provisions of the project resettlement plan, which shall at least include:
(I) on the face value of the room ticket composition.
In principle, the face value of the house ticket consists of the market appraisal price of the house to be expropriated or the new price of the house to be replaced (subject to the compensation calculation method specified in the project implementation plan), temporary transitional resettlement payment, scheduled contract signing and relocation incentive payment, house ticket resettlement incentive payment and other parts. In principle, the standard of housing ticket resettlement incentive shall not exceed a certain proportion of the assessed price of the expropriated housing market or the replacement of the housing to the new price, and the specific range is often determined by the project implementation unit in combination with the actual project.
(II) regulations on the use of room tickets
According to the existing regulations on the use of room tickets in market-oriented resettlement of local governments, most of them include the following aspects: first, the real-name system is implemented for room tickets, and the scope of use of room tickets is limited to the deduction of house money when the resettlement object purchases the houses included in the room ticket resettlement house library, and shall not be cashed out, transferred (including sale, gift, exchange) and mortgaged. Second, on the premise of ensuring that the resettlement objects have met the housing needs, the resettlement object can use the room ticket to purchase non-residential housing; Third, the total transaction price of the house purchased by the resettlement object with the room ticket shall not be less than a certain proportion of the face value of the house. The unused part of the house ticket (the allowed remaining proportion) shall be paid to the resettlement object by the real estate development enterprise in advance. The part of the total price of the house purchased by the room ticket higher than the face value of the room ticket shall be borne by the resettlement object; fourth, often set a certain period of use for the room ticket, the period does not calculate interest, more than the period in accordance with the agreed calculation method to calculate interest.
(III) determination of housing resources for resettlement
Before the signing of the commercial housing resettlement compensation agreement, the government generally collects commercial housing (including other types of housing, subject to local policy plans) that meet the resettlement housing conditions in the administrative area through an open way. After reviewing the developer's application conditions, the qualified ones will be included in the resettlement housing library, and the government will sign the "Market-oriented Housing Resettlement Project Agreement" with it, which clearly stipulates the use and settlement rules of the housing ticket, and the resettlement object can use the housing ticket to purchase the housing included in the housing ticket resettlement housing library, and sign a commercial housing sales contract with the housing unit.
The legal relationship between the 2. resettlement object and the real estate development enterprise
The resettlement object holds the house ticket to the resettlement housing library to buy commercial housing and sign the commercial housing sales contract. Except for the use of the house ticket as the purchase price, the rights they enjoy are no different from those of ordinary buyers. In addition, based on the reason of demolition compensation, the resettlement object does not need to pay deed tax on the value of the house fare. As a development enterprise, its rights and obligations in the market-oriented housing resettlement procedure are mainly to receive the price of the house paid by the government, to receive the price difference paid by the demolished person, and to deliver commercial housing to the demolished person.
(I) on the determination of the price of commercial housing
The "Market-oriented Housing Resettlement Project Agreement" signed by the development enterprise and the government often stipulates the price range of the resettlement housing, and the actual sales of the development enterprise shall not be higher than the price range determined in the "Agreement. If the price of the entire real estate market is lowered to the price range determined in the Agreement, the development enterprise shall negotiate with the demolished person according to the lowered price, and the sales price of the development enterprise to the resettlement object holding the house ticket shall not be higher than the normal market sales price. Based on this agreement, development companies often determine the price range of the ''Market-oriented Housing Resettlement Project Agreement'' based on the actual number of demolished people who buy houses with settlement documents, combined with the real estate market conditions, and lay the foundation for the subsequent specific determination of the transaction price of commercial housing.
For the total value of the commercial housing exceeds the amount of the house ticket, it is no different from the ordinary commercial housing transaction, and the resettlement object shall pay the development enterprise on time according to the agreement of the commercial housing sales contract. For the buyer's payment time, payment method, and liability for breach of contract, in the commercial housing sales contract specific agreement.
(II) on the development of enterprises to the demolition of commercial housing delivery.
The government often stipulates the delivery of resettlement housing in the form of normative documents, and at the same time, it often stipulates the delivery time in the "market-oriented housing resettlement project agreement" signed with the developer. For example, the detailed rules for the implementation of the market-oriented housing resettlement policy in Zhangqiu District of Jinan City clearly require that the commercial housing provided by the development enterprise should be existing houses or short-term houses that have been presale and can be delivered within one year. For the delivery conditions of commercial housing, if the government has special requirements, it must be clearly stipulated in the commercial housing sales contract and delivered to the resettlement object according to the standard. The government has given a certain degree of intervention to the delivery obligations of development enterprises at the policy level, so compared with ordinary commercial housing transactions, it is more important to hand over houses in accordance with the agreement. If the development enterprise violates the agreement, it may not only bear the liability for breach of contract based on the "commercial housing sales contract", but also bear the liability for breach of contract to the government based on the "market-oriented housing resettlement project agreement" signed between the development enterprise and the government.
(III) legal analysis on whether to pay deed tax
The house tickets delivered by the government to the demolished are essentially monetary compensation. According to Article 3 of the Notice of the Ministry of Finance and the State Administration of Taxation on Enterprise Financing by Sale and Leaseback (Caishui [2012] No. 82), starting from December 6, 2012, the municipal and county-level people's governments will expropriate residential houses in accordance with the relevant provisions of the Regulations on Housing Expropriation and Compensation on State-owned Land, if a resident chooses monetary compensation for the purchase of a new house due to the expropriation of his or her personal house, and the transaction price of the purchase does not exceed the monetary compensation, the deed tax shall be exempted for the newly purchased house.
Based on the above provisions, the deed tax of the demolished person shall be exempted from the price value of the house ticket, and the amount exceeding the price of the house ticket shall be levied. However, in view of the inconsistency of the demolition policies in various regions, at the practical level, the basis of the local tax department shall prevail.
The Legal Relationship of House Ticket Settlement between 3. Government and Real Estate Development Enterprises
The price paid by the government to the development enterprise shall be all or part of the total price of the commercial housing. In the "Market-oriented Housing Resettlement Project Agreement" signed by the development company and the government, the payment time, payment method and liability for breach of contract of the resettlement housing settlement price that the government should pay are generally agreed in detail. Generally speaking, after the commercial housing is delivered for use, the real estate development enterprise shall go to the project implementation unit to handle the settlement procedures of housing ticket funds with the commercial housing sales contract, house ticket and house delivery certificate filed by the Ministry of Housing and Construction. The project implementation unit shall settle the house ticket funds in accordance with the return ratio promised by the real estate enterprise to the government.
4. Summary
Market-oriented housing resettlement reduces the government's resettlement pressure, meets the diverse housing needs of the demolished, and also promotes the healthy development of the real estate industry. For the government, it is necessary to sign the Housing Resettlement Compensation Agreement with the resettlement object on the basis of the resettlement object's voluntary choice of housing ticket, which clearly stipulates the composition and amount of the face value of the housing ticket, the regulations on the use of the housing ticket, and the scope of housing resources for housing ticket resettlement. For the resettlement object, it is necessary to purchase commercial housing with the housing ticket within the scope of the Housing Resettlement Compensation Agreement; for development enterprises, they need to fulfill the contractual obligations in the "Commercial Housing Sales Contract" signed with the resettlement object and the "Market-oriented Housing Resettlement Project Agreement" signed with the government.
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