Real estate perspective: after the signing of the commercial housing sales contract and before delivery, the developer leases it to a third party, can the buyer directly request the delivery of the commercial housing against the lessee?
Published:
2021-04-22
Presentation of 1. issues
After the real estate developer and the buyer sign the commercial housing sales contract and sign the record online, the buyer has paid all the purchase price according to the contract, but before the delivery of the commercial housing, the developer leases it to a third party, and the agreed lease term exceeds the time when the enterprise should deliver the commercial housing to the buyer. Now that the conditions for the delivery of commercial housing as stipulated in the contract have been met, can the buyer claim that the commercial housing sales contract was signed first and the third party does not meet the legal provisions of "the sale does not break the lease" (stipulated in article 229 of the original contract law and article 725 of the current civil code), and then directly request the developer to deliver the house to resist (exclude) the possession and use of the third party?
2. Analysis of Lawyers
Regarding the above situation, our lawyers believe that a progressive analysis should be carried out from the following three aspects: First, what is the validity of the lease contract signed between the developer and a third party? Second, under the premise that the lease contract is valid, which priority is given to the purchase and sale claims and lease claims enjoyed by the buyer of commercial housing and the third party to the real estate developer? Third, in the case of the priority realization of the sale of claims, how to realize the buyer's rights in the legal procedure?
(I) on the validity of the commercial housing lease contract signed between the developer and the third party.
Article 146 of the Civil Code states: "Civil juristic acts performed by the perpetrator and the counterpart with a false intention are null and void." In addition, Article 154 of the Civil Code stipulates: "Civil legal acts that maliciously collude between the perpetrator and the counterpart to damage the legitimate rights and interests of others are invalid." If the developer falls into a debt crisis and achieves the purpose of evading the delivery of commercial housing to the buyer by signing a lease contract with a third party, the lease contract is a false expression of intention of both parties, and there is no real transaction in essence. It is often manifested in the following forms: first, the two sides of the lease relationship are often de facto or legal stakeholders, which is usually a prerequisite for the collusion of both parties; second, the lease period stipulated in the lease contract is generally longer, and the shorter lease period cannot achieve the improper purpose of evading the delivery of the house to the buyer; third, because the lease contract is "nominal", the lessee may not have real rent payment behavior; fourth, the Lessee is not in good faith and it knows the existence of the Buyer. If the above facts exist, no matter whether it has the intention to damage the legitimate rights and interests of the buyer, the false legal acts of both parties are invalid, and the buyer can request the developer to carry out the actual delivery of the commercial housing to counter (exclude) the nominal tenant's possession and use.
(II) on the priority of buying and selling claims and leasing claims.
According to the basic principles of civil law, there is equality between creditor's rights, but for indivisible debt, in the case of multiple creditors, only one can be selected to achieve priority, and then other creditors can be compensated by other means, for example, Articles 6 and 7 of the Interpretation of the Supreme People's Court on the Application of Legal Issues in the Trial of Disputes over Sales Contracts (hereinafter referred to as the "Judicial Interpretation of Sales Contracts") provide for the order of realization of claims in the case of ordinary and special movable property "one-thing sale, article 5 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Disputes over Urban Housing Lease Contracts (hereinafter referred to as the" Judicial Interpretation of Lease Contracts ") stipulates the order of realization of lease claims in the case of" one room for several rents. Therefore, although the law and judicial interpretation do not clearly stipulate the priority of buying and selling claims and leasing claims, but for the two subject conflict (the same is the delivery of commercial housing) claims, it should be determined that a claim in the realization of priority. This paper explains the application of the rule of "buying and selling without breaking the lease" and the factors that need to be considered in the order of realization of equal claims stipulated in judicial interpretation.
1, on the "sale does not break the lease" rule of the application.
"Sale and purchase without breaking the lease" means that the change of ownership of the leased property during the period of the lessee's possession under the lease contract does not affect the validity of the lease contract, which includes at least two meanings:
First, the lessee is in possession of the leased property based on the lease contract, if the lessee and the developer only signed a lease contract, but did not actually occupy the leased commercial housing, "the sale does not break the lease rule" has no applicable space, the buyer can naturally request the developer to deliver the commercial housing.
The second is that the ownership changes during the possession period of the leased property, and there are two conditions for the real property to change: from the perspective of publicity, the registration of real property rights changes must be completed. Both conditions must be met during the term of the lease in order to be a change of ownership that occurs during the term of possession of the leased property under the law. In addition, from another perspective, only when a new right burden is set up on the leased property during the lessee's possession of the leased property, the lessee is protected by the "sale without breaking the lease rule". In this case, the signing of the sales contract precedes the lease contract, and the buyer enjoys the "real right expectation right" to the commercial housing based on the sales contract. This right comes before the lease claim. Therefore, the "sale without breaking the lease rule" should not be applicable in this case ".
2. Factors to be considered regarding the order in which equal claims are realized
Article 6 of the judicial interpretation of the contract of sale and purchase stipulates that the order of realization of claims in the case of multiple contracts of sale and purchase of ordinary movable property shall be: the buyer who receives the delivery first shall have priority. Article 7 of the judicial interpretation of the sales contract stipulates that the order of realization of creditor's rights in the case of multiple sales contracts for special movable property is as follows: the buyer who receives the delivery first has priority; If none of them have been delivered, the buyer who has gone through the ownership transfer registration formalities (special movable property adopts "registration antagonism") has priority. If none of them has delivered and gone through the ownership transfer registration procedures, the buyer with the contract established first priority. Article 5 of the judicial interpretation of the lease contract stipulates that the order of realization of the creditor's rights in the case of multiple lease contracts for the same house is: the priority of legally occupying the leased house.
From the above judicial interpretation, it can be extracted that there are four factors that need to be considered in the order of realization of equal creditor's rights: first, whether the rights have changed, and the delivery of movable property is the condition for the change of real right, so the first priority is delivery; The second is the credibility of publicity, which gives priority to the establishment of the contract in the absence of the above two factors, for the lease, the first legal possession of the priority, the fourth is the special circumstances should also compare the cost of different claims to achieve, to avoid causing excessive losses to a party.
In this case, there is no problem of right change and publicity. From the perspective of fairness principle, the commercial housing sales contract was signed first. In addition, according to the presumption of fact stipulated in the civil procedure law, based on the fact of the presale of commercial housing, the lessee should be aware of the existence of the buyer, its lease claims are defective. From the point of view of the cost of the realization of the claim, the buyer has paid the entire purchase price, while the lessee has only paid the rent at most, and the costs paid by the two creditors to realize the claim are obviously not equal, so the purchase and sale of the claim should have priority.
To sum up, if the developer rents the commercial housing to a third party before the transfer registration after the signing of the commercial housing sales contract, on the issue of protecting the legitimate rights and interests of the buyer, the validity of the lease contract should be judged first, and then the priority of the purchase and sale creditor's rights and lease creditor's rights should be judged in combination with the facts of the case. Through the above analysis, our lawyers tend to believe that after the signing of the commercial housing sales contract, before delivery, the developer will rent it to a third party, the buyer can directly request the developer to deliver the commercial housing to counter (exclude) the possession and use of the third party.
The legal procedure for the realization of the creditor's rights of the buyer of (III) commercial housing.
In the case of the priority realization of the purchase and sale creditor's rights, the buyer can oppose (exclude) the third party's possession and use of the commercial housing through two ways: one is to directly add the lessee as the third party without independent claim right in the litigation of the commercial housing sales contract dispute, and it will perform the commercial housing delivery obligation determined by the effective judgment; the other is to directly appeal to the developer to deliver the house without knowing the specific information of the lessee, if the developer or lessee refuses to deliver the commercial house after the judgment takes effect, it shall apply to the people's court for compulsory execution. If the lessee has any objection, it shall be resolved through the execution objection procedure.
3. advice from our lawyers
In practice, it is often small-scale real estate developers who sell (presale) commercial housing and then rent it to a third party. This type of developer has weak financial strength and is easy to fall into debt crisis. If they sign a commercial housing sales (presale) contract, Buyers need to always pay attention to the dynamics of the enterprise and related construction projects, and grasp the priority of the realization of creditor's rights. In addition, the advance notice registration of commercial housing is the only choice to protect the buyer and have an antagonistic effect on the third party. If the developer has a debt crisis, it is recommended that the buyer apply to the court for property preservation of the commercial housing in a timely manner to prevent the developer or a third party from using it for other purposes. After meeting the conditions for the delivery of the commercial housing and the registration of transfer of ownership, the developer should be urged to hand over the house and assist in handling the transfer procedures, so as to eliminate the legal risk that the creditor's rights have no antagonistic effect.
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