On the risk of land certificate in the contract of house sale -- from the perspective of lawyer's practice.

Abstract: In judicial practice, due to the lag of legislation, many new disputes arising in the process of housing sales can not be properly handled in time. Although China implemented on January 1, 1995 <<城市房地产管理法>>, but because the legislation is too general and the operability is not strong, the basis and results of the judgments of local courts on housing sales disputes are also different. Eight years later, on June 1, 2003, the Supreme People's Court's Interpretation on Several Issues Concerning the Application of Law in the Trial of Disputes over Commercial Housing Sales Contracts was implemented.<城市房地产管理法>> Some problems in practical operation have been supplemented in more detail and more perfect, but there are still many loopholes used by some developers. Among them, the land certificate is the increasingly prominent focus of contradiction.
Keywords: housing sale land certificate land system

I. The land system of our country
In our country's land system, land ownership is divided into state-owned and collective. Individuals cannot own land ownership. This is due to historical reasons and the country's implementation of the socialist system. Although individuals have no land ownership, they can own the right to use land. Collectively owned land is exercised by the collective. Individuals can own the land contract right and the right to use the homestead, while the right to use state-owned land, from the acquisition method can be divided into two kinds of transfer and allocation.
1. The transfer of land use right refers to the act of the state transferring the land use right to the land user within a certain number of years as the land owner, and the land user pays the land use right transfer fee to the state.
2. The allocation of land use rights refers to the act of handing over the land to the land user for use after the land user has paid compensation, resettlement and other fees with the approval of the people's government at or above the county level in accordance with the law, or handing over the land use right to the land user for use free of charge. The allocated land is limited to the land used by state organs, military land, urban infrastructure land, public welfare land, energy, transportation, water conservancy and other construction projects supported by the state. Generally, there is no specific time limit.
II. Types of housing currently existing in our country
At present, there are many types of housing in China, including commercial housing, affordable housing, housing reform housing, old village reconstruction housing, unit fund-raising housing, private housing, public housing, etc. Among them, affordable housing, housing reform housing, unit fund-raising housing can not be free to buy and sell, the transaction is subject to the adjustment of national policy. The old village renovation housing is only allowed to transfer within the collective organization.
   <一>Concept of various types of housing
1. Commercial housing refers to real estate enterprises established in accordance with the law, through the transfer of land use rights to the construction of residential housing, directly to the non-specific residents of the building.
2. Affordable housing refers to commercial housing sold to low-and middle-income families at a low profit price. It is a commercial housing with the nature of social security, with the characteristics of economy and applicability.
3. Housing reform is a kind of housing welfare system for employees by the state, and it is a form of transition from housing system to housing commercialization. Its price is not determined by market supply and demand, but is sold at standard price or cost price.
4. Private houses are also called private houses, private houses. It is a house purchased and built by an individual or family. In rural areas, farmers' houses are basically self-built private houses. Public housing is sold to individuals and families through the residential consumer market and is converted into private housing. With the advancement of residential commercialization, the proportion of urban private housing will continue to increase with the advancement of housing reform.
5. Public housing is also called public housing, state-owned housing. It refers to the housing invested and sold by the state and state-owned enterprises and institutions. Before the housing is sold, the property rights (ownership, possession, disposition and income) of the housing belong to the state. At present, the public housing rented by residents is divided into two categories according to the housing reform policy, one is saleable public housing, and the other is non-saleable public housing. The above two types of houses are the right to use the house.
6. Fund-raising housing is to change the system that housing construction is contracted by the state and units, and the government, units and individuals are jointly responsible for the construction of houses by raising funds. Individual employees may give partial relief in terms of full or partial capital contribution, credit, supply of building materials, taxes and fees, etc. The ownership of the housing built by the fund-raising shall be determined according to the proportion of capital contribution. Individuals who contribute in full according to the house price have all the property rights, and individuals who contribute in part have part of the property rights.
7. Low-rent housing: my country's low-rent housing is only rented but not sold, and it is rented to the lowest-income urban residents. The source of low-rent housing is mainly the old public housing.
8. The old village reconstruction house refers to the house built by the collective organization to improve the housing conditions of the village (resident) people. In the legal sense, the old village reconstruction houses are divided into two categories: one is the old village reconstruction houses that conform to the unified planning and have legal and complete construction procedures; the other is the illegal construction houses that do not have planning and construction procedures, which is what people often call "wild real estate". Legally built old village reconstruction houses can only be transferred between the villagers (residents). However, the illegal old village renovation houses had to be demolished because they did not conform to the plan and did not have construction procedures.

   <二>Comparison of various types of housing
In a variety of housing types, allow free circulation of commercial housing, and the remaining seven types of housing are restricted or prohibited circulation, the circulation of the policy to be adjusted, and the root cause of this situation is the land use rights to obtain different ways.
This paper mainly studies the land certificate problem in the incremental housing transaction, and the stock housing transaction or illegal building is not in the scope of this paper.
3 Reasons for not being able to handle the transfer of land use rights after purchasing a house
   <一>The main reasons why land of the nature of the transfer of land use rights cannot be transferred are:
1. Failure to pay the land transfer fee. In this case, as long as the developer makes up the transfer fee, but in reality, the developer is unwilling to pay for the pursuit of profit maximization.
2. Incomplete building procedures. The commercial housing presale requires five certificates to be complete, the most important of which is the commercial housing presale license, but most presale commercial housing has not been handled, and there are illegal development and illegal sales.
In this case, as long as the developer to pay all kinds of taxes and fees, for small land certificate is no problem.
   <二>
1. The formal real estate development company sold it in the name of commercial housing after building houses on the allocated land, but finally did the formalities of affordable housing. The developer defrauded the buyer, resulting in a major right flaw in the purchase of the house.
2. Some units have gone through various procedures in the name of raising funds to build houses, but they are sold in the name of commercial housing, and the price is similar to that of commercial housing in the same location. Most of such houses are allocated land.
For this kind of housing, local governments have different attitudes. Some local governments have issued documents stipulating that as long as the land transfer fee is paid and the land transfer contract is re-signed, it is possible to apply for a small land certificate for home buyers. There are also some local governments. The government does not make up the formalities for such illegal land use, nor does it deal with it, and let it go. In the current judicial system, the local courts and the same level of government to maintain a consistent attitude to shirk responsibility, not accepted.
   <三>The Problem of Collective Land
1. With the village committee as the main body, under the banner of old village reconstruction, it is developed and sold to unspecified buyers in the name of the village committee. In 2007, there was a very popular word, "small property room". The so-called small property right house refers to the village committee to sell the houses built on collective land for the resettlement of villagers to people outside the collective organization, and the village committee or township government to produce and issue the ownership certificate of the house, such property rights strictly speaking, not the legal sense of property rights, not protected by law. Because when signing the contract, the buyer knows that the nature of the land is collective, and the village committee is not qualified to conduct transactions, so this purchase contract is invalid.
2. The village committee will hand over the collective land to a real estate company with development qualifications. The real estate company will develop and sell it to unspecified buyers in its own name, and most of them are sold in the name of commercial housing. Moreover, the price is not much different from the commercial housing. Buyers generally have no way of knowing the nature of the land. For such contracts, it is inappropriate to simply determine that they are invalid, which will greatly harm the interests of innocent buyers. Therefore, the courts are now dealing with such issues with great caution.

4 Risks and defects of no land certificate
In the process of real estate development, developers first obtain large land certificates, and then apply for large house ownership certificates after the development is completed. Then the developers are responsible for handling small house ownership certificates for buyers, and finally handling small land certificates for buyers. Small land use rights, also known as "floor land rights", it is generally based on the buyer's purchase of the ownership of the house in the entire building ownership share to determine a land ownership ratio, with this ratio multiplied by the entire building occupied land area, you can get the area of small land use rights. The proof of recording this right is the "small land use right certificate". The "small land certificate" is a certificate that proves that the buyer has legal rights and interests in the land after the expiration of the land use right period of 70 years. It is as important as the real estate certificate and cannot be ignored.
The owner obtains the house property right certificate without the small land certificate, which means that he cannot obtain all the rights of the house in the legal sense. The land that has been bought with money has been registered in the name of the developer in the law. The owner should be ready to bear the risk that the land will be disposed of by others or even lose the house at any time,
The problem that the owner only obtains the house ownership certificate without the small land certificate is obvious, which is manifested in two aspects: 1. If the owner does not handle the personal small land certificate, and the large land certificate has been registered in the name of the developer, the owner will inevitably bear the corresponding risk. If the developer mortgages the large land certificate he has obtained to the bank for loan, once there is a problem in its capital operation, the bank auctions the land mortgaged by the bank to recover the loan, which will face the land use right purchased by the owner and put it back into the market circulation. It is not a simple problem of seeking compensation from the developer. The buyer will face a series of lawsuits. Article 37 of the 2. "Urban Real Estate Management Law" stipulates: "Real estate that has not been registered in accordance with the law to receive a certificate of ownership shall not be transferred." Article 32 stipulates that "when real estate is transferred and mortgaged, the ownership of the house and the land use right within the scope of the occupation of the house are transferred and mortgaged at the same time." As can be seen from the above-mentioned articles, the land use right of our country is transferred together with the above-ground buildings. Mortgaged. In other words, if strictly in accordance with the law, houses with only a house ownership certificate but no small land certificate cannot be bought or sold. If a sales contract has been signed, according to the provisions of Article 52, paragraph 5, of the Contract Law, a contract that violates the mandatory provisions of laws and administrative regulations shall be null and void. Based on this, it can be seen that if there is no small land certificate, the normal transaction of the real estate secondary market will not be carried out legally.
V. The root causes of the problem and the reasons for the intensification of contradictions
    <一>Reasons for legislation
The main reason why China restricts the free circulation of collective land is to protect arable land, prevent farmers from selling land for temporary gain, and prevent a large number of landless farmers from appearing after several years.
   <二>Reasons for Government
In terms of land use, due to the government's insufficient supervision, a large number of land violations exist. This is the government's dereliction of duty. The government cannot always stay in the previous office mode. It should change its concept and work with the development of society. Methods, using the current scientific and technological means to supervise the use of land is a very simple thing. The use of online COOGLE EARTH software can be very convenient to see the situation of buildings on the land. The author believes that the government supervision is not enough and some developers illegal operation is now leading to a large number of allocated land, collective land on the "commercial housing" existence of the root causes.
   <三>Reasons for Justice
The court is the last barrier to social justice. when a dispute occurs between a weak buyer and a strong development enterprise, it is in urgent need of the intervention of public power to confront it. unfortunately, the court has lost its voice at this time. the liquidated damages for overdue certification in the case of dispute over commercial housing sales contract are only valid for commercial housing sales contract, and do not adjust the "commercial housing" built on collective and allocated land ". And now the common practice of the court that late registration of ownership certificate refers to the real estate certificate, not including land certificate. Therefore, at present, only the buyer of the house on the land can accept the case that the buyer claims to apply for the real estate certificate within the time limit and requires the development company to bear the liquidated damages, while the case that the buyer requests to apply for the small land certificate is not accepted. If, after acceptance, find out the nature of the land is allocated or collective, in accordance with the law to judge the contract is invalid, it will cause great losses to the property of innocent buyers, and thus will form a great pressure to petition. That is why the Court is now evasive.
VI. Solve this problem I see
The reasons for such illegal land use in the final analysis are four words, "interest-driven"! Developers have interests, village committees have interests, and even some government officials have interests! To solve this problem, we must start from this aspect. We must strengthen the supervision of the land use situation, increase the punishment for illegal use of land, increase the illegal cost of developers and village committees, and make them unprofitable.
For houses that have already been sold, they are treated differently:
1. For buyers who know that they are renovated houses in old villages, affordable houses, and those who buy them for cheap prices, the contract should be deemed invalid, and both parties should return the property. For the losses caused by the appreciation of real estate, because they are also at fault, they should bear this part of the responsibility,
2. For buyers who have been fraudulently mistaken for commercial housing and purchased, they should not be held responsible because they are not at fault. First of all, we should find out the construction procedures of the old village reconstruction house and affordable housing project. If it is in line with the planning and the quality of the house is qualified, we should order the developer or the village committee to complete the formalities and bear the land transfer fee, and impose a fine. If it is found that the project does not conform to the planning or the quality of the house is not up to standard, the contract shall be found to be invalid, and the property shall be returned by both parties and the developer or the village committee shall bear the expected loss of interest brought about by the appreciation of the real estate.
To sum up, solve the housing land certificate is the responsibility of the relevant government departments, but also to safeguard the rights and interests of the majority of buyers, the need to maintain social stability. To this end, the relevant government departments should step up law enforcement efforts, a strict inspection of land use. Clarify the nature of the land and crack down on illegal land use. so as to safeguard the rights and interests of the broad masses.

This article won the third prize of Jinan lawyer's business paper selection in 2011

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