Discussion on the related issues of rental housing delivery

With the increasingly active real estate transactions and rental market, housing lease contract disputes are on the rise, and the problems arising from the delivery of rental housing also show the diversified characteristics of disputes. It is necessary to discuss how to avoid possible disputes from the relevant matters of the signing of the lease contract and the delivery process of the lease house, and how to protect the legitimate rights and interests of both parties to the contract after the dispute, which is of practical significance.

         1. Legal Provisions and Understanding of Leased Property Delivery

Article 216 of the the People's Republic of China Contract Law stipulates: "The lessor shall deliver the lease to the lessee in accordance with the agreement and keep the lease in line with the agreed purpose during the lease period". This article is about the lessor's obligation to deliver the leased house under the lease contract and is the basic obligation of the lessor. The so-called delivery of the lease, refers to the transfer of the subject matter of the possession of the lessee. The delivery of the leased house means that the lessor of the house, in accordance with the house lease contract signed by both parties, delivers the house that meets the provisions of the contract to the lessee for use in accordance with the time agreed in the contract, and the lessee conducts the inspection and acceptance of the house, and both parties perform the delivery procedures. Article 216 of the Contract Law stipulates the basic obligation of the lessor to deliver the house, which is not limited to the transfer of possession of the house to the lessee, but also includes the lessor's active cooperation to make the house fit for the purpose of the lessee's use after the transfer of possession, thus promoting the realization of the lessee's purpose of renting the house. Therefore, the author believes that the content of the rental housing delivery is not only the transfer of housing possession, but also should be based on the contract of the rental housing delivery agreement, including the relevant rental housing drawings, license approval documents and other ancillary obligations of the handover, but also should include the rental housing handover procedures.

When the 2. signs the house lease contract, the signing matters that should be paid attention to the delivery terms of the leased house.

1, the current situation of the house, the description of the scope of the lease should be as detailed as possible.

The current situation of the house shall make a detailed agreement on the location of the leased house, whether there is a house title certificate and land use certificate, the main building structure of the house, whether the house is residential or commercial, whether the house is mortgaged or not, etc. The agreement on the scope of the leased house shall state that "the scope of the lease shall be subject to the plan sketched in the annex to the contract" and the topographic location map and plan of the leased house shall be made as the annex to the annex, in order to avoid future disputes between the two parties due to the structure of the house, the scope of the lease and other matters.

2. Agreement on the existing decoration, ancillary facilities, equipment conditions, water, electricity, coal or natural gas and other existing supporting conditions in the leased house.

The author believes that both parties to the lease should also make a detailed agreement in the lease contract, specify in detail the contract requirements for water, electricity, gas, sewage, elevators, fire-fighting equipment and other housing supporting equipment, and make relevant schedules. The agreement of this clause is the key clause to examine whether the lessor has delivered the house according to the contract when the house is delivered, so a detailed agreement is made to facilitate the registration of the two parties to the lease when the house is delivered.

3. Agreement on the delivery date of the leased property

The agreement of the delivery date is the key to the delivery of the house, if the agreement does not affect the lessee's claim of rights. When both parties agree on the specific delivery date, they shall clearly agree that the delivery date shall be the starting date of the lease of the leased house, so as to agree on the lease term.

4. Agreement on fire fighting equipment requirements and fire safety responsibility sharing of leased premises

This needs to be repeated, because it is a point that causes more disputes in practice. For example, when renting houses as commercial special industries, such as hotels, hotels and other public gathering places, the fire protection requirements for rental houses are relatively strict. Therefore, when signing a lease contract, it should be strictly controlled. The "Regulations on the Management of Fire Safety in Hotels and Restaurants" stipulates that "when the housing property unit contracts, leases or entrusts the operation and management of the houses to which it belongs, it shall provide houses that meet the requirements of fire safety, and the parties concerned shall specify the fire safety responsibilities of all parties in the contract concluded in accordance with the relevant provisions." At the same time, in accordance with the provisions of Articles 2 and 3 of the "Regulations on Fire Supervision and Administration of Construction Projects", the lessee's leased premises for hotel and accommodation use must undergo decoration engineering fire protection design review, fire protection acceptance, filing, and spot checks. As the lessor, it is necessary to provide the lessee with the procedures for the fire acceptance of the leased house through the construction project. According to the provisions of Articles 13 and 15 of the the People's Republic of China Fire Protection Law, and the People's Republic of China the provisions of Articles 6, 8 and 9 of the Regulations on Fire Supervision and Inspection issued by Decree No. 107 of the Ministry of Public Security, the Lessee shall also apply for fire safety inspection from the local public security fire control institution before the hotel is put into use and business, otherwise the Lessee's hotel shall not be put into use and business. On March 4, 2004, the Supreme People's Court made a clear explanation on whether the house lease contract should be invalid without fire acceptance or unqualified fire acceptance under different circumstances in the letter on how to determine the validity of the house lease contract. It can be seen that the fire safety requirements of the leased premises are very important in practice and should be sufficient to attract the attention of both parties to the lease.

5, the delay in the delivery of the house or the delivery of the house does not meet the conditions agreed in the contract when the lessor's liability for breach of contract.

When the house lease contract is signed, it should be considered and clearly agreed that when the lessor does not deliver the house on time and according to the agreed content, the lessee should take remedial measures or the agreement of the liability for breach of contract. If it may be agreed in the lease contract that the lessee may request the termination of the contract, double the return of the deposit or the payment of the breach of contract.

Matters needing attention during the delivery of the 3. Leased Property and the procedures to be performed by both parties

1. Before the delivery of the house, both parties shall make a "house handover form", which lists the house conditions agreed in the contract, relevant license approval documents of the house, existing decoration, auxiliary facilities, equipment conditions, existing supporting conditions such as water, electricity, coal or natural gas, fire fighting facilities, etc., and lists the materials that have not been handed over, matters that do not meet the delivery conditions and other matters, both parties to the lease sign and confirm the delivery of the house on the delivery date on the "House Handover Form.

2. For the leased house that does not meet the delivery requirements, both parties shall actively negotiate to solve the problems arising from the delivery process and perform the objection notification procedures.

3. For the leased house that meets the delivery requirements, the lessor shall also deliver the key of the house to the lessee in order to provide conditions for the lessee to actually occupy and control the leased house.

Corresponding claims in the event of a delivery default between the parties to the 4. lease.

(I) lessor's claim

In practice, there are a large number of cases where the lessee repents and does not want to continue to perform the lease contract after signing the lease contract and before the delivery date agreed in the contract, and may not participate in the delivery of the house on the delivery date. As for this, the lessor shall fulfill the obligation of notifying the lessee's delay in taking over the house, and issue a written notice to the lessee to come and handle the delivery procedures of the house, if the house delivery procedures are not completed within the time of notice, the lessor has the right to terminate the house lease contract. If the lessee pays a deposit, the deposit may not be refunded, and if it causes losses to the lessor, the lessor may also claim compensation from the lessee.

(II) Lessee's Claims

1, the lessor can not deliver the leased house on time.

In the actual situation, there is often such a phenomenon: the lessee has made all preparations and went to the lessor to go through the delivery procedures at the time agreed by both parties, but was told by the lessor that the house could not be delivered on time. This situation will bring a lot of inconvenience to the lessee, and even cause huge economic losses to the lessee. At this time, if the lessor fails to deliver the house to the lessee on time, the lessee can fully inform the lessor in writing to deliver the leased house within a time limit; if the lessor fails to deliver the leased house within the time limit, the lessee has the right to request the termination of the lease contract and require the lessor to bear the liability for breach of contract. If the lessee pays a deposit, the lessor may be required to double the return.

2. The delivery conditions agreed in the contract were not met when the leased property was delivered.

If the house does not meet the conditions agreed in the contract at the time of delivery, especially for commercial houses such as hotels and shops, the lessee will suffer losses. If the delivery conditions are not met and the delivered house has major defects, and the defects directly cause the lessee to be unable to use the leased house normally, the lessee may request the termination of the house lease contract in accordance with the provisions of the contract law on the termination of the contract, and require the lessor to bear the liability for breach of contract. If the lessee does not express the intention to terminate the lease contract, it shall make a request to the lessor for full delivery, and both parties may also change the delivery conditions of the original lease contract.

In the trial practice, there is still a situation that when the lessee discovers the inconsistent delivery situation in the delivery process of the leased house, he does not actively perform the written notification obligation to the lessor, and the lessor does not pay enough attention to solve the objection arising from the delivery process of both parties, and the delay of time leads to the failure of both parties to continue to perform the contract. In this regard, the court will determine that there is a certain degree of fault on both sides of the consequences of this situation, the loss of both parties, will measure the degree of fault of both parties to determine the civil liability of both parties.

3. After the house is delivered, the lessee finds that the delivery conditions are not met during the use process.

In the delivery process of the house, there is also a situation where the two parties to the lease did not find a defect in the house at the time of delivery, but the defect was found during use, and the defect caused the lessee to be unable to use it normally. In this case, the lessee can require the lessor to repair or reduce the rent within a time limit. If the defect endangers the safety of the lessee and the purpose of using the leased house, the lessee may request the termination of the lease contract in accordance with the relevant provisions of the contract law.

The discussion of the above issues is based on the author's views on the related issues involved in the delivery of houses when undertaking such entrusted cases in practice, so as to avoid the occurrence of disputes when signing the house lease contract and in the process of performing the contract, so as to better deal with the housing lease dispute cases.