Real estate perspective: the legal risks and countermeasures of development enterprises in the "after-sale charter" model.
Published:
2021-02-22
After-sales charter of commercial housing refers to the real estate development enterprise in a certain period of time to lease or on behalf of the rental buyer purchased by the enterprise's commercial housing sales of commercial housing, to the rental period of the rental offset part of the house price or pay a certain rental return behavior. After-sales charter is conducive to real estate development enterprises to promote sales, speed up cash withdrawal, but after-sales charter model has certain legal risks, the resulting disputes are not a few, in this our lawyers stand in the perspective of development enterprises, analysis of commercial housing after-sales charter model of legal risks and countermeasures.
1. the legal effect of the after-sale charter contract.
Article 11 of the measures for the Administration of the sale of Commercial Housing stipulates that real estate development enterprises shall not sell uncompleted commercial housing by means of after-sale charter or disguised after-sale charter. However, this provision is only for uncompleted commercial housing and does not prohibit after-sale charter for completed and delivered housing. Secondly, the "Administrative Measures for the Sale of Commercial Housing" is an administrative regulation issued by the Ministry of Construction, and according to Article 153 of the "Civil Code", only civil legal acts that violate the mandatory provisions of laws and administrative regulations are invalid. The Supreme People's Court on the application <中华人民共和国合同法> Article 4 of the (I) on the interpretation of certain issues stipulates that after the implementation of the contract law, the people's court shall confirm that the contract is invalid, and shall be based on the laws formulated by the National People's Congress and its Party Committee and the administrative regulations formulated by the State Council, and shall not be based on local regulations or administrative rules. Therefore, the normal after-sale charter contract, as long as the parties to the intention of the true, and does not have other invalid circumstances stipulated by laws and regulations, the contract should be valid.
Typical Case 1: Henan Higher People's Court (2020) Yu Min Shen No. 5319
Referee's point of view: After examination, the court held that, first of all, regarding the validity of the contract involved in the case, Guan Weiyue applied for a retrial, claiming that Derun Company had illegal sales behaviors such as "return sales, after-sale charter, advance payment of down payment". If the above sales behaviors violate the relevant administrative regulations of the Ministry of Construction and the Ministry of Finance, Derun Company can be punished by the administrative department, however, the relevant provisions listed by Guan Wei month do not belong to the mandatory provisions of laws and regulations that lead to the invalidity of the contract. Guan Weiyue's claim that the original application of the law was wrong cannot be established.
Typical Case 2: Jiaxing Intermediate People's Court (2020) Zhejiang 04 Minshen No. 57
Judgment point of view: the the People's Republic of China contract Law and its judicial interpretation clearly stipulate that the contract is invalid, that is, if the people's court confirms the invalidity of the contract, it shall be based on the laws formulated by the National people's Congress and its standing Committee and the administrative regulations formulated by the State Council, and shall not be based on local regulations and administrative rules. The "Administrative Measures for the Sale of Commercial Housing" is an administrative regulation. Therefore, Wang Wei's reason for requesting the invalidity of the after-sales charter contract involved in the case based on the administrative regulation in the original trial cannot be established. The original judgment rejected Wang Wei's claim and the applicable law was correct.
The legal risk of 2. the after-sale charter model.
Group Litigation Risk Caused by (I)
Under the after-sale charter mode, once the real estate development enterprise has poor management, resulting in the rental return can not reach the standard promised to the buyer, the development enterprise may become the target of the buyer, causing the buyer to sue or check out the risk.
(II) administrative penalty risk
According to Article 42 of the measures for the Administration of the sale of Commercial Housing, those who sell uncompleted commercial housing by means of after-sale charter or disguised after-sale charter shall be given a warning by the relevant department, ordered to make corrections within a time limit, and may be fined not less than 10000 yuan but not more than 30000 yuan. Therefore, if a real estate development enterprise adopts the after-sale charter model to sell uncompleted commercial housing, it will face the risk of being punished by the competent authorities.
(III) criminal liability risk
Article 2 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Criminal Cases of Illegal Fund-raising stipulates that it does not have the true content of real estate sales or does not use real estate sales as the main purpose, and uses return sales, after-sales charter, and agreed repurchase, Whoever illegally absorbs funds by means of selling shares of real estate will be convicted and punished in accordance with the crime of illegally absorbing public deposits. Therefore, if the real estate development enterprise signs the after-sale charter contract with the buyer for the purpose of financing, but does not have the purpose and content of the real estate sales, there is a risk of being investigated for criminal responsibility.
3. development enterprises to deal with the risk of after-sale charter.
(I) development enterprises can entrust a third-party operation company with professional operation qualification to carry out charter and sublease business, and the operation company signs a house lease contract with the buyer to separate the relationship between the sale and lease of commercial housing; or at the same time, the development enterprise signs a house sale contract with the buyer, It is agreed that the buyer entrusts the development enterprise to operate the commercial real estate purchased by it, so as to avoid operational risks.
The (II) development enterprise or the operating company entrusted by it shall evaluate its own capital situation, commercial operation capacity and industry situation and other factors, and reasonably agree on the rent and lease period. Due to the changing market conditions, the lease period should not be too long. At the same time, development enterprises should avoid exaggerating rental returns in commercial publicity and reduce unnecessary disputes.
(III) development enterprises should avoid the business model of after-sale charter of unfinished properties, avoid the risk of administrative penalties and the risk of default on all parties when the completion acceptance cannot be completed on time.
(IV) development enterprises should avoid financing in the name of sale and leaseback mode, but do not have the real content of real estate sales or do not take real estate sales as the main purpose in the actual sales process, so as to avoid being investigated for criminal responsibility. To this end, development enterprises should improve the "commercial housing sales contract" of the contract text, the relevant contract terms should be specific and clear.
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