Conflict and Coordination of Rights in Commercial Housing presale
Published:
2010-07-01
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Summary:The mortgage right of the bank, the expectation right of the buyer, the priority compensation right of the construction project of the builder are all real estate as the subject matter, the realization of the three rights directly points to the real estate as a whole, of which the realization of a right will inevitably affect the rights of other relevant rights holders, that is, the conflict of rights in the presale of commercial housing. Coordinating the conflict of related rights in the commercial housing presale includes two aspects: one is how to use the method of civil law hermeneutics to make a scientific interpretation of the current law and solve the legal disputes in practice; the other is how to scientifically design and plan the future system to reduce the conflict of rights and better realize the rights of all kinds of right holders.
Key words:Mortgage Right Expectation Right Construction Project Priority Compensation Right Conflict Coordination.
The development and construction of commercial housing is a systematic project, and the legal relations involved are extremely complicated, especially today when commercial housing presale is the mainstream of real estate sales. Generally speaking, the development of commercial housing has to go through the stages of raising funds, construction, housing presale, project settlement and delivery. Accordingly, each stage will produce different legal relations, in this complex network of legal relations, the conflict of rights is inevitable. The ability to resolve the conflict of rights in the commercial housing presale is one of the important indicators to measure the level of legal practice, and the legislative technology to coordinate the conflict of rights is an important yardstick to measure whether the legislation is scientific or not.
This paper will take the main types of rights existing in the commercial housing presale as the starting point, make a typed study of the conflicts of rights that may exist in the period, and try to clarify the nature of its legal relationship, and put forward methods and ideas to solve practical problems, with a view to legal practice and legislative development can be beneficial.
Types of rights in 1. commercial housing presale
Capital is the core issue of real estate development, real estate development is based on the acquisition and use of funds as the center, real estate enterprises are also through the circulation and use of funds to achieve the purpose of development. It can be said that grasping the capital chain of real estate development is equivalent to grasping all of real estate development, and the same is true for the analysis of real estate legal affairs. At present, the poor financing channels of real estate still exist, and the sources of funds for development enterprises mainly include their own funds, advance funds from builders, funds for commercial housing presale and mortgage loans from banks.[1]There may be many types of rights at the node of the real estate enterprise capital chain.
1.mortgage of the bank
Bank loans are one of the important ways for real estate enterprises to obtain development funds. According to Article 180 of the Property Law, in the process of acquiring land use rights for development, real estate enterprises may mortgage the right to use construction land or buildings under construction to obtain bank loans, according to which banks may obtain mortgages on land or construction in progress. Among them, the development enterprise is the mortgagor, the bank is the mortgagee, the subject of the mortgage is the right to use the construction land for the development of real estate projects or construction in progress.
2.The right of expectation of home buyers
Housing sales is an important part of real estate development, and it is also the key for real estate companies to withdraw funds and achieve sales purposes. Generally speaking, when the development of real estate enterprises reaches a certain level, the real estate enterprises will sell the developed houses to the public after obtaining the commercial housing presale license. Buyers through the development of commercial housing presale contracts, and a one-time payment or through bank credit to pay off the full purchase of the house, buyers based on this will obtain the right to obtain the ownership of the house built in the future, some scholars will be buyers of such rights called the right to expect.[2]
3.The builder's priority right to compensation for construction works.
The relationship between real estate enterprises and builders is an important relationship in real estate development. One of the sources of funds for real estate development is also the advance funds from builders. According to statistics, as of January 2004, the accumulated project payment in arrears nationwide was as high as 336.6 billion yuan, accounting for 19.6 of the total annual output value of the construction industry.%。[3]Whether the advance capital of builders can be recovered smoothly is not only related to the operating interests of construction enterprises in a weak position, but also related to the maintenance of the legitimate rights of construction workers. To this end, Article 286 of the Contract Law confirms the priority right of the builder to the construction project, after which the Supreme People's Court's Approval of the Priority Right to the Price of the Construction Project further enriches the connotation of this right.The right of priority compensation for construction works is that after the completion of the construction project, the contractor fails to pay the price as agreed, and the contractor has priority over the construction project, and the constructionThe price of the project at a discount or auction shall be paid in priority.[4]
Conflict of Rights in 2. Commercial Housing presale
The mortgage right enjoyed by the bank, the expectation right of the buyer, the priority compensation right of the construction project of the builder are all real estate as the subject matter, the three rights in the realization of the real estate as a whole, then, the realization of one of the rights will inevitably affect the rights of other relevant rights holders, that is, the conflict of rights in the presale of commercial housing.
1.Bank mortgage and the right of expectation of home buyers.
Although the academic circles have different views on the nature of commercial housing presale registration and filing, in practice, once the developer has presale the commercial housing and gone through the presale registration and filing procedures, the developer will not be able to mortgage the land use right or the construction in progress. register. Therefore, the mortgage in the commercial housing presale generally refers to the pre-presale developer's mortgage of all its land or construction in progress.
According to the provisions of Articles 5 and 7 of the "Administrative Measures for the presale of Urban Commercial Housing", the presale of commercial housing does not require the removal of mortgages deposited on land or construction in progress. In other words, the real estate with the right to use construction land or the mortgage right of the construction under construction can enter the presale market. The real estate purchased by the buyer in advance may have the mortgage right of the bank on the land. The right of expectation of the buyer is the right to obtain the ownership of the property as the content, while the mortgage of the bank is the right to obtain the exchange value of the property as the content, the two point to one thing, the content of the right is contradictory, so that it is not possible to realize their respective interests at the same time.
2.The bank's mortgage and the builder's priority compensation for construction works.
The right of priority compensation for construction projects is a legislative means to protect the weak and guarantee the debtor's right to survival, although the academic circles have different understandings of the nature of the right of priority compensation for construction projects, there is no dispute about the statutory nature of the right of priority compensation for construction projects, and the right of priority compensation for construction projects is a right arising from special provisions of the law.
The subject matter of the construction project priority compensation right is the construction project, that is, the completed property, and the subject matter of the bank mortgage can be real estate in addition to the construction in progress. According to the relevant provisions of the Property Law, the mortgage on the real estate is not as good as the new buildings on the ground. If the real estate enterprise only uses the real estate mortgage loan, the bank can only give priority to the real estate discount and auction value when realizing its mortgage right, and the new buildings on the ground can not be regarded as priority compensation. If there is a right of priority compensation for construction works at this time, the value of the building after the agreement and sale can be paid by the builder first, so that there is no conflict between the bank mortgage and the right of priority compensation for construction works. On the contrary, if the construction in progress is the subject matter of the mortgage, the bank mortgage and the priority of the construction project will conflict because of the same object of payment.
3.The buyer's right of expectation and the builder's right of priority compensation for construction works.
After the completion of the construction project and the acceptance of the project, the development enterprise has a dual obligation. On the one hand, the developer has the obligation to deliver the real estate to the buyer in accordance with the "Commercial Housing presale Contract", so as to realize the real possession and use of the house by the buyer; on the other hand, the developer has the obligation to pay the construction project to the builder in accordance with the "Construction Project Contract. At this time, if the development enterprise does not pay the construction project funds to the builder, the builder will therefore enjoy the construction project priority compensation rights, the builder in the development enterprise after a reasonable period of time the development enterprise has not yet paid the project funds, the builder has the right to discount or auction the construction project, its income priority to be paid off.
The subject matter of the builder's priority is the completed and accepted commercial housing, and at this time the buyer's right of expectation is the real possession and use of the commercial housing, which creates the conflict between the buyer's possession, use value and expectation of ownership of the commercial housing and the builder's exchange value.
3. on the coordination of the conflict of rights in the presale of commercial housing from the perspective of interpretation.
Coordinating the conflict of relevant rights in the presale of commercial housing includes two aspects. On the one hand, when there is a conflict of rights, how to use the method of civil law hermeneutics to make a scientific interpretation of the current law, straighten out the sequence of conflicting rights, and solve legal disputes in practice; on the other hand, how to scientifically design and plan the future The institutional system to reduce the conflict of rights and better realize the rights of various rights holders.
According to the Supreme People's CourtThe Approval of the Right to Priority Compensation of the Construction Project Price stipulates that the priority compensation right of the construction project is superior to the mortgage and other claims, and after the consumer has delivered all or most of the money for the purchase of the commercial house, the contractor shall not oppose the buyer for the priority compensation of the project price enjoyed by the commercial house. In short, the right of mortgage, construction project priority compensation right, the buyer's expectation right is in the first place, while the construction project priority compensation right and the mortgage right 2. the third place.
However, according to the principle of civil law, the buyer's right of expectation and the right of priority compensation for construction projects are not property rights, but the Approval gives them the effect of taking precedence over the mortgage, a typical security right, so does the buyer's right of expectation and the right of priority compensation for construction projects have a specific right connotation? The author thinks that solving the effect root of the right of expectation of property buyers and the right of priority compensation for construction projects is the premise of correctly applying the "Approval" to deal with legal problems.
1.Whether the right of expectation of home buyers in the first place is conditional on presale registration.
Some scholars believe that the priority compensation right enjoyed by property buyers against construction projects must be based on advance notice registration, without advance notice registration, property buyers only enjoy general claims, can not produce the priority effect against construction contractors.[5]In the author's opinion, the view of advance registration as a condition for the priority of compensation against construction projects is debatable.
After the marketization of real estate, the purchase of houses through the real estate market is the general way for ordinary people to realize their living interests, the consumer's right to buy a house is closely related to their right to survival, the consumer interests are specially protected by the legal principles of various countries, the consumer interests belong to the survival interests, should take precedence over the contractor's business interests.[6]The priority given by law to the right of expectation of home buyers is the special protection of the right to survival of home buyers, is the embodiment of the tendency of legislative policy, is a special provision of the law. In addition, buyers are in a weak position in real estate transactions. After signing a house purchase contract, whether to register the presale is often restricted by real estate companies. If the priority of the right of expectation of home buyers is denied only without presale registration, it will be difficult to achieve the legislative purpose of the Approval to protect the right of survival of home buyers. Therefore, the author believes that the right of expectation of buyers in the first place should not be based on presale registration. As long as the buyers meet the consumer status and deliver all or most of the money for the purchase of commercial housing, they will enjoy the priority of purchase. Right of expectation.
2.Whether the priority of compensation for construction works over the mortgage is subject to registration.
Whether priority is based on registration as a condition of establishment varies from country to country. German civil law asserts that priority must be registered and that unregistered priority is not valid, while France provides that priority does not need to be registered even if it has priority effect. There is also much controversy in the academic circles as to whether the priority of compensation for construction projects in China needs to be registered as a prerequisite.
The author thinks that the right of priority compensation for construction works does not need to be registered, and can not be registered or not as the basis for whether to oppose the mortgagee. On the one hand, the priority of compensation for construction projects is a legal right, and its priority effect comes from the special provisions of the law. As long as the legal conditions are met, the legal priority effect can be produced; on the other hand, the priority of compensation for construction projects is not only related to the operating interests of construction enterprises, but also related to the survival interests of construction workers, the protection value of the law on the construction price is much higher than the protection of the bank's operating interests. From the point of view of interest measurement, the priority compensation right of construction project should take precedence over the mortgage right.
4. legislative proposals to resolve the conflict of rights in the presale of commercial housing
1.Amended in accordance with the provisions of the Property LawAdministrative Measures for the presale of Urban Commercial Housing,Add "mortgagor's consent" as one of the presale conditions.
The key to the difficulty of bank mortgage in the commercial housing presale is that the mortgagee fails to effectively restrict the presale behavior of the real estate enterprise, and suffers the damage that is difficult to realize under the strong effect of the presale result (I. e. the right of expectation of the buyer). The "Property Law" promulgated in 2007 has solved the above problems well. According to Article 191 of the Property Law, the mortgagee must obtain the consent of the mortgagee to transfer the mortgaged property, otherwise the contract of disposition will be invalid.[7]Specific to the commercial housing presale process, commercial housing presale in addition to the specific house transferred to the buyer, the corresponding land use rights of the house will also be transferred to the buyer. After the developer mortgages the land or construction in progress, the presale of the commodity house should obtain the consent of the mortgagee and pay off the debt or deposit the transfer price in advance. In this way, the bank mortgage can be effectively protected while the development enterprise presale the house, avoiding the mortgage right in the conflict with the buyer's expectation right.
In addition, in this context, the amendment of 《Measures for the Administration of the presale of Urban Commercial Housing,The addition of "mortgagor's consent" as one of the presale conditions, alsoIt has other important practical significance. On the one hand, the Property Law is the basic law of changes in real rights, and all relevant laws should be consistent with its protection,《The same is true of the Administrative Measures for the presale of Urban Commercial Housing, which is an inevitable requirement of the principle of unification of the legal system; on the other hand, the revision of《The inconsistent provisions of the Measures for the Administration of Urban Commercial Housing presale and the Property Law are the requirements for ensuring the credibility of national administrative actions. According to the Property LawArticle 191 provides that the contract of disposition of the mortgagor's transfer of the mortgaged property will be null and void without the consent of the mortgagor. In other words, presale acts permitted by the state may be invalid without the consent of the mortgagee, which will also have a very bad impact on the credibility of state organs.
It is worth noting that the addition of "mortgagee's consent" as one of the presale conditions is only a means to restrict the presale behavior of real estate enterprises, and the key to ensure the realization of bank mortgage rights lies in the establishment of early settlement and deposit system.
2. Establish a sound supervision system for presale funds and standardize the use of presale funds.
Commercial housing presale funds are the source of development enterprises to pay development costs and obtain development profits, and the remaining presale funds after the developer repays bank loans and interest, construction funds and other operating costs are the development profits of the development enterprises. Therefore, regulating and controlling the use of presale funds is of great practical significance for solving the problem of arrears of construction funds and the realization of bank claims. To this end, the author suggests that according to the characteristics of real estate development, for different stages, establish a set of perfect presale funds supervision system to standardize the use of presale funds.
It is gratifying that some local legislation has made fruitful attempts in the supervision of presale funds, which can provide reference for our next legislation. The Qingdao Municipal People's Government promulgated in 2010The Interim Measures for the Supervision of presale Funds for Newly-built Commercial Housing, which provides detailed regulations on the subject of supervision, supervision period, and specific supervision procedures. These regulations are highly operational and are useful for regulating the use of presale funds by real estate companies and avoiding rights in presale. The conflict has important practical significance. According to the relevant provisions of the measures, the presale funds of the newly-built commercial housing can only be used to purchase the necessary building materials and equipment for the development and construction of the project, pay the construction progress payment, pay legal taxes and fees, repay the development loan of the project and pay other related expenses of the project, which can effectively reduce the advance capital of the builder and improve the possibility of the developer to repay the loan, avoid conflicts between the right to priority compensation for construction works and other related rights at the source.
[1]See Fu Qilin, "Conflicts of Rights and Interests Related to Mortgage Rights in Commercial Housing presale and Improvement of Legislation", Journal of Henan College of Political and Law Management Cadres, No. 5, 2005.
[2]See Zhang Huagang, "A Study of the Legal System of Expectation Rights in Commercial Housing presale Contracts", 2007 Master's Thesis of Dalian Maritime University, p. 5.
[3]See Wu Qingwang, "Conflicts of Interest and Equity in Real Estate Development", doctoral dissertation of Southwest University of Political Science and Law, 2004, p. 166.
[4]See Wang Liming: On Property Law, China University of Political Science and Law Press, July 2003, p. 726.
[5]See Wang Liming: On Property Law, China University of Political Science and Law Press, July 2003, p. 728.
[6]See Liang Huixing, "The Nature of Rights in Article 286 of the Contract Law and Its Application", Journal of Shanxi University, No. 3, 2001.
[7]See Wang Liming: Research on Property Law (Volume II), Renmin University of China Press, December 2007, p. 467.
(This article won the third prize of Jinan excellent lawyer paper in 2010)
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