Help fight the "epidemic" (IV). The operation guide of real estate enterprises to prevent the legal risks arising from the "epidemic".

Under the new coronavirus pneumonia epidemic, Shandong Province has launched a major public health emergency time level response, in order to fully do a good job in the prevention and control of the epidemic, the local government authorities issued a construction project to postpone the resumption of work, start work, close sales sites, suspend real estate marketing activities, etc., the real estate industry in engineering construction, housing sales, purchase contract performance, housing leasing, property management and other aspects are facing severe tests and pressure.

In the real estate industry winter, cash flow is king of the dilemma, how to patiently win this war without smoke "epidemic", how to maximize the control of legal risks and reduce economic losses in this war "epidemic", is a real problem faced by every real estate enterprise.

 

Zhongcheng Qingtai Law Firm combines the experience of construction real estate legal services to analyze and study the legal practical problems and legal risks that real estate enterprises may face during the epidemic prevention and control period. The legal risk management guidelines are as follows. Time is short and omissions are inevitable. If you have any questions or other specific issues, please keep in touch with us. We will also provide high-quality and efficient legal services.

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Part I Field of Engineering Construction

In the context of preventing large-scale population movements and delayed start-up of enterprises, it will inevitably lead to a series of adverse consequences such as delays in construction projects, rising labor and raw material prices, and rising project management costs, which will bring construction units and construction units. For huge economic losses, the operating guidelines are as follows:

 

(I) construction projects must be delayed in accordance with the relevant provisions of the resumption of work, workers are not allowed to return to the site in advance.

 

Local government authorities have clearly requested the construction project to postpone the resumption of work. Among them, Jinan, Liaocheng and other places will notify the resumption of the project in accordance with the relevant requirements of epidemic prevention and control, while Dongying, Binzhou and other places require the resumption of the project to submit An application can only start construction after approval by the competent government department. The recommendations are strictly followed.

 

(II) obey the government's work arrangements and actively participate in the epidemic prevention and control work of relevant disease control departments, medical departments, and health administrative departments.

 

In construction projects, construction real estate enterprises also need to actively cooperate with disease control institutions, medical institutions, health administrative departments in the investigation, evidence collection, sampling and isolation of the epidemic, and timely report relevant patients and suspected cases.

 

(III) pay close attention to the notices and regulations related to the construction industry issued by the competent government departments at any time, and make corresponding adjustments, responses and cooperation in a timely manner.

 

Based on the needs of epidemic prevention and control, the central and local governments and relevant departments have issued a number of notices and regulations on delayed resumption of work and management of the construction and real estate industry, which should be paid special attention to and made timely adjustments and responses, with the following specific recommendations:

(IV) fully and reasonably anticipate the possible material impact on construction in progress as a result of the outbreak control measures.

(V) reasonably share the corresponding economic losses caused by force majeure.

 

For the problem of how to bear the losses and expenses caused by force majeure, it is suggested to deal with it according to the contract agreement. If there is no specific contract agreement, the construction unit and the construction unit shall share it through negotiation according to the principle of fairness. The factors considered when determining the sharing ratio include the contractor's profit rate, the contractor's performance, the contractor's loss, the employer's bearing capacity, the employer's loss, the proportion of the loss to the total contract amount, etc.

 

(VI) should actively fulfill the relevant obligations to mitigate losses.

 

Considering that it can be foreseen that the epidemic situation cannot be fundamentally improved in the short term, the construction unit must actively require the construction unit to fulfill relevant obligations that can reduce losses, including but not limited to timely changing the project implementation plan, re-purchasing equipment and materials and recruiting labor personnel from areas not seriously affected by the epidemic situation, and withdrawing machinery and equipment that have not been used for a long time overdue, so as to avoid the risk of expanding losses.

 

(VII) correctly treat the reasonable request of the construction unit, and prevent disputes with the construction unit in advance.

1, timely docking processing of the construction unit may be based on the outbreak caused by the project extension claims.

2, clarify the force majeure/situation change factors, based on the construction unit's breach of contract caused by the delay of the specific responsibility and do a good job of evidence collection.

 

For the following four situations, the construction unit can not claim exemption, it is recommended to promptly urge the construction unit to perform, and improve the relevant evidence collection work:

The second part of the commercial housing sales, delivery field

1. commercial housing sales

 

(I) suspend the centralized promotion activities of commercial housing, suspend the sales activities of sales offices, cancel the group activities such as registration, subscription and opening, launch the online sales of commercial housing as soon as possible, and make full use of wechat platform and VR technology to realize the marketing activities of commercial housing.

 

Although local governments in Shandong Province have different document requirements on epidemic control measures, most of the documents have basically clearly closed sales sites and suspended all marketing activities, and it is recommended that they be implemented in accordance with the requirements of the above documents. If acts such as refusing to execute orders, interfering with epidemic prevention and control, or obstructing public service constitute an illegal crime, there is a legal risk of assuming corresponding administrative and even criminal liability.

 

It is suggested that if conditions permit, online sales offices and other applications should be pushed in the official WeChat public number to guide customers to use VR to watch and consult delivery standards, apartment types and model rooms, and to set up online consultants or telephone sales consultants to make full preparations for accumulating customers.

 

(II), if the buyer is unable to go to the scene to sign the subscription agreement, purchase contract and other related documents due to the epidemic, it is recommended to postpone the signing of the contract or to complete the signing by mail or remote video, and pay attention to the corresponding legal risks.

 

If, due to the epidemic, the buyer is unable to go to the site to sign the purchase contract, the real estate enterprise may consider giving the buyer a reasonable extension of the period, or take flexible ways such as mail signing, remote video, data message signing, etc. to complete the signing, and properly retain the signing evidence.

 

When the impact of the epidemic is eliminated and the conditions for face-to-face signing are met, the customer is required to sign the written contract and related documents on site as soon as possible.

 

(III) the current situation, in principle, buyers can not use the epidemic as a reason to request the termination of the subscription agreement or purchase contract and claim exemption.

 

Only when the epidemic and its prevention and control measures pose a significant obstacle to the performance of the contract, the impact of the pneumonia epidemic force majeure to the extent that the purpose of the contract can not be achieved, the parties to the contract can use this as a reason to exercise the statutory right of discharge to request the termination of the contract and claim exemption.

 

However, the current epidemic control measures may only lead to delays in the performance of contractual obligations, but not enough to achieve the purpose of the contract can not be achieved, the buyer in this case can not be arbitrarily unilaterally terminated the contract, otherwise should bear the liability for breach of contract.

 

2. commercial housing delivery

 

(I) establish a contract ledger to distinguish between the signing time of the purchase contract and the agreed delivery time.

 

For real estate development projects that may have overdue delivery, establish a contract ledger in a timely manner to distinguish between the signing time of the purchase contract and the agreed delivery time.

 

(II) collect and implement relevant evidence that the project is in normal construction progress and status before the outbreak.

 

For real estate development projects that need to be delivered in the current year of 2020, relevant evidence that the project has been in normal construction progress before the outbreak of the epidemic (I .e. if there is no epidemic, it is reasonably believed that the project can be completed and delivered on schedule) shall be collected as far as possible, including but not limited to: relevant evidence of node construction period completion, relevant evidence of construction progress payment allocation, construction log, supervision log, etc.

 

(III) to collect evidence that the implementation of the epidemic poses a substantial obstacle to project construction and housing delivery.

1. Collect and sort out, including but not limited to, relevant notices, documents, official documents and correspondence materials of local government authorities on epidemic prevention and control at construction sites.

In addition to the government documents that have been issued so far, it is recommended to further follow up and sort out all kinds of relevant policy documents on the control of the epidemic situation in real estate construction projects issued by the competent departments of provinces, cities and district and county governments, as well as relevant notices and correspondence documents copied or sent directly to real estate enterprises. Real estate enterprises may also consider requesting the competent government departments to reply in writing to the specific time and restriction requirements for the commencement and resumption of construction projects by means of written inquiry.

 

2, focus on the implementation of the collection of construction workers because of the epidemic prevention and control of the specific restrictions and control of the relevant written evidence.

In view of the fact that a large number of migrant workers are employed by construction units, they should properly handle the removal, detection and isolation of personnel returning to Wuhan and Hubei and those in close contact with them. Real estate enterprises should require construction units to do a good job in the protection and management of construction sites in accordance with the requirements of the "Emergency Notice on Strengthening the Prevention and Control of Novel Coronavirus Epidemic on Construction Sites" issued by Jinan Housing and Urban and Rural Construction Bureau, provide real estate enterprises with written information such as the origin of migrant workers, their experience in and out of Wuhan and their contact history with relevant personnel, and provide materials such as instructions and relevant photos on whether there is any need for personnel isolation in the event of resumption of work.

 

3. After the government notifies the resumption of work, the real estate shall promptly request the construction units to resume work in writing, and after the resumption of work in the project, if the epidemic control still leads to labor shortage and insufficient supply of materials, the construction units and supply units shall be required to issue corresponding evidence and provide objective evidence.

In view of the fact that the competent government departments have gradually allowed conditional commencement and resumption of work, but it is reasonably foreseeable that the epidemic control measures will still lead to a shortage of migrant workers, insufficient supply of construction materials and other situations, if the construction unit is unable to fulfill the relevant contractual obligations on time due to the above effects, such as migrant workers, goods can not be in place and so on, the construction unit shall require the construction unit to promptly notify the construction unit and provide objective evidence in accordance with the provisions of Article 118 of the the People's Republic of China Contract Law or the contract.

 

4, in the construction process, such as the epidemic prevention and control obviously lead to the impact of the construction period, real estate enterprises should also be in accordance with the objective situation and the contract agreement, through correspondence, project visa list, work contact list, meeting minutes, supervision log and other truthful and objective reflection.

After the resumption of the project, if there are still situations such as large-scale personnel isolation and material shortage, the construction materials such as the correspondence between the construction unit, the supervision unit, the material supply unit and the construction unit and the formation of the supervision log will reflect the impact of the epidemic on the construction progress to a certain extent, the construction unit shall require all construction units, supply units and supervision units to truthfully reflect the past letters, project visa forms, work contact letters, meeting minutes, etc.

 

The (IV) recommends sending a notice of force majeure to the purchaser in a timely manner and retaining relevant evidence.

1. If there is no special agreement in the contract, you can consider sending the buyer a force majeure notice about the new coronavirus pneumonia epidemic by EMS postal express in time, and keep the written evidence of mail delivery.

If there is no special agreement in the contract, it is recommended that the real estate enterprise send the force majeure notice about the new coronavirus pneumonia epidemic to the buyers in a timely manner in written form. It is recommended to send the above notice by mail through EMS, and at the same time, the words "Force Majeure Notice about the new coronavirus pneumonia epidemic" should be clearly marked on the express delivery details. The receipt information shall be filled in the receipt information clearly stated in the "Commercial Housing Purchase Contract; note that the courier company is required to provide a written receipt of delivery, and properly keep the mailing back, courier form and receipt of delivery after mailing.

2, if the change of the epidemic again has a substantial impact on the construction of the construction project, the real estate enterprise should also promptly in writing to the buyer issued a new notification letter.

If the subsequent changes in the epidemic again cause substantial obstacles to the construction of the project, the real estate enterprise shall also send the relevant notice in writing again in accordance with the aforementioned process.

Part III Other contract areas (leasing, procurement, etc.)

Part IV Field of Labor and Employment

1. reduce labor costs

 

Under the influence of the (I) epidemic, enterprises can adjust salaries, rotate jobs, shorten working hours and reduce labor costs by means of consensus with employees.

 

According to the provisions of the Labor Contract Law and the Notice of the General Office of the Ministry of Human Resources and Social Security on Properly Handling Labor Relations during the Prevention and Control of Pneumonia Infected by Novel Coronavirus, enterprises can adjust their salaries through consultation with their employees. In addition, if there is a floating salary part (such as the marketing performance commission of the real estate consultant) directly linked to the enterprise's benefits and employee performance as stipulated in the labor contract or rules and regulations, can also be considered in accordance with the labor contract agreement or rules and regulations.

 

With regard to the overall salary issues such as the wage distribution mechanism, the enterprise may, in accordance with the provisions of Article 4 of the Labor contract Law, formulate a draft wage distribution mechanism, which shall be discussed by the workers' Congress or all the staff and workers, put forward plans and opinions, and be determined through equal consultation with the trade union or the staff and workers' representatives.

 

Enterprises can also stabilize their jobs by means of rotating jobs and shortening working hours through consensus with employees, so as to avoid or reduce layoffs as far as possible.

 

(II) the statutory application of economic layoffs is more stringent, and the relevant government documents also encourage enterprises to make reasonable arrangements for production and operation, try not to lay off employees or reduce layoffs, it is recommended to take economic layoffs measures with caution.

 

According to the provisions of the Labor Contract Law, when the employer has serious difficulties in production and operation and other reasons, it needs to reduce more than 20 employees or reduce less than 20 employees but account for more than 10% of the total number of employees of the enterprise, the employer 30 days in advance After explaining the situation to the trade union or all employees, and after listening to the opinions of the trade union or employees, the reduction plan shall be reported to the labor administrative department, and the personnel may be reduced.

 

In addition, according to the "Notice of Shandong Provincial Department of Human Resources and Social Security on Actively Responding to the New Coronavirus Infected Pneumonia Epidemic and Doing a Good Job in Labor Relations", if an enterprise has difficulties in production and operation due to the impact of the epidemic, it can adjust salary, rotate jobs, shorten working hours, wait for jobs, etc. through consultation with employees to stabilize jobs, and try not to lay off or reduce layoffs. Enterprises affected by the epidemic are encouraged to maintain normal production and operation by means of concentrated work and rest.

 

Under the current circumstances, even if serious difficulties in production and operation of enterprises due to the epidemic require layoffs, considering the difficulty of practice and other factors, it is still not recommended that enterprises make economic layoffs.

 

2. labor relations and employee management

 

The (I) shall not terminate the labor contract in accordance with Articles 40 and 41 of the Labor Contract Law for pneumonia patients, suspected patients and close contacts infected with the novel coronavirus during their isolation treatment or medical observation, and shall pay wages during the isolation period in accordance with normal attendance.

 

For the employees of the enterprise who are unable to provide normal labor due to the isolation treatment or medical observation of pneumonia patients, suspected patients and close contacts infected by novel coronavirus, as well as the government's implementation of isolation measures or other emergency measures, the enterprise shall not terminate the labor contract with the employees according to Articles 40 and 41 of the Labor Contract Law. During this period, the labor contract expires, respectively postponed to the staff medical period, medical observation period, the end of the isolation period or the end of the emergency measures taken by the government.

 

For pneumonia patients, suspected patients and close contacts infected with novel coronavirus who are unable to provide normal labor due to isolation measures such as isolation treatment and medical observation, the enterprise shall pay their wages during the isolation period according to their normal attendance. After the end of the isolation period, for patients who still need to stop working for treatment, the enterprise shall pay their sick pay in accordance with the relevant provisions of the medical treatment period of the employee's illness.

 

(II), for workers from Hubei or who have recently worked or lived in Hubei, enterprises should take different measures according to the different situations of employees.

 

It is recommended that employers take different countermeasures according to the different situations of employees:

3. social insurance

 

(I) enterprises or individuals are unable to participate in social security in time due to this outbreak, and are allowed to make up after the outbreak.

 

According to the relevant provisions of the Notice of the General Office of the Ministry of Human Resources and Social Security on Effectively Doing a Good Job in Social Insurance Handling Work during the Prevention and Control of the Pneumonia Epidemic Infected by the Novel Coronavirus, due to the impact of the epidemic, the employer is overdue for the registration of employees, payment and other business, the handling agency should promptly accept. For flexible employees and urban and rural residents in 2020 to make a one-time supplementary payment or regular payment of social insurance premiums to relax the time limit requirements, failed to handle the insurance payment in a timely manner, allow the outbreak after the end of the replacement, and in the system logo. Overdue payment does not affect the personal rights and interests of the insured, and the procedures should be completed within three months after the outbreak is lifted.

 

(II) employees who are diagnosed with pneumonia caused by new coronavirus interference can enjoy medical insurance during treatment, and the personal burden is partially subsidized by the government.

 

The Ministry of Finance and the Health Insurance Bureau jointly issued the "Emergency Notice on the Medical Protection of the Pneumonia Epidemic Infected by the New Coronavirus", which requires that the local health insurance and financial departments ensure that the diagnosis of the new coronavirus infection pneumonia patients do not affect medical treatment due to cost issues, and that the treatment of hospitals is not affected by the payment policy. First, for the medical expenses incurred by patients, after the basic medical insurance, critical illness insurance, medical assistance, etc. are paid in accordance with the regulations, the personal burden is partially subsidized by the government. Second, for those patients who seek medical treatment in different places, they shall be treated first and then filed, and reimbursement shall not be subject to the reduction of the payment ratio for medical treatment in different places. Third, the drugs and medical service items used by patients in line with the new coronavirus infection pneumonia diagnosis and treatment plan formulated by the health and health department may be temporarily included in the scope of payment of the medical insurance fund.