Perspective | Conflicts in Land Use and the Crisis of Contractual Validity—A Legal Breakthrough in the Return of Deposits in Real Estate Joint Development
Published:
2025-03-28
In the field of real estate joint development, ambiguous land ownership, application conflicts, and defects in the qualifications of the subject often become fatal hidden dangers to the validity of the contract, and are even more likely to trigger a chain of legal disputes. This article uses the development dispute of a community affordable housing project as a starting point, focusing on the two core controversial focuses of "determination of the validity of the main contract" and "feasibility of contract transfer under an invalid contract", to conduct an in-depth legal analysis. By combing through the mandatory regulations of the Land Management Law and the Urban Real Estate Management Law on land properties, Applications control, and joint development contracts, combined with the case judgment rules of the Supreme People's Court, this article systematically demonstrates the invalidity risks faced by the agreement in question due to the mixing of land Applications, lack of planning approval, and the exceeding of authority by the contracting entity; At the same time, it is argued that even if the main contract is invalid, the right to claim the return of property arising from the invalid consequences can still be independently transferred, and the transferee has the right to directly claim rights beyond the original contractual relationship. The research not only provides multi-dimensional path support for developer Ding's claim for the return of the deposit, but also has a certain practical guiding value for clarifying the transfer rules of the derivative rights of invalid contracts.
在房地产合作开发领域，土地权属模糊、用途冲突与主体资格瑕疵往往成为合同效力的致命隐患，更可能引发连环法律争议。本文以某社区保障房项目开发纠纷为切入点，围绕“主合同效力认定”与“无效合同下合同转让的可行性”两大核心争议焦点，展开穿透式法律解析。通过梳理《土地管理法》《城市房地产管理法》对土地性质、用途管制及合作开发合同的强制性规范，结合最高人民法院类案裁判规则，系统论证了涉案协议因土地用途混同、规划审批缺失及签约主体越权所面临的无效风险；同时论证即便主合同无效，基于无效后果产生的返还财产请求权仍可独立转让，且受让人有权突破原合同关系直接主张权利。研究不仅为开发商丁的保证金追索提供多维路径支撑，更对厘清无效合同衍生权利的流转规则具有一定实务指引价值。
一、案件背景概述
甲方（社区居委会）与乙方（开发商）签订《房地产项目合作建设协议书》，约定双方共同开发某社区保障用房项目，总建面10余万㎡（商住混合）；另约定了收益分配：甲方占40%，乙方占60%以及乙方的出资责任：乙方全额投资4亿元，并缴纳2000万元履约保证金。合同未明确土地性质是否为国有土地，用途标注“商业、商务（保障房）”。在此基础上，乙方与第三方丙签订了合作协议，约定了丙代付履约保证金及其他权利义务。
后因客观原因，甲、乙、丙三方与另一开发商丁签订了四方转让合同，约定将乙基于原合作协议的权利义务转让给丁，各方同意。但丁需返还丙代付的2000万元保证金及利息。
最终，因客观原因丁无法继续项目建设，拟通过诉讼请求保证金的返还。
二、经论证后，丁拟通过确定合同无效而请求返还财产的路径进行维权，涉及的关键法律问题
1. 涉案主合同是否有效？
2. 若主合同无效，其转让合同是否有效？
三、法律分析
（一）根据《中华人民共和国土地管理法》《中华人民共和国城市房地产管理法》等相关法律法规，结合协议涉案土地性质合同效力分析如下：
1、涉案土地性质分析
（1）土地用途合法性存疑
协议中明确土地用途为“商业、商务（保障房）”，但“保障房”通常属于住宅性质（如经济适用房、公租房等），与“商业、商务”用途存在冲突。根据《土地利用现状分类》（GB/T 21010-2017），商业用地（B1）与住宅用地（R2）用途不同，混合用途需明确规划审批。若实际用途与规划不符，可能违反《土地管理法》第四条（土地用途管制制度），导致合同无效。
（2） 土地权属及性质未明确
协议未明确涉案土地性质（国有或集体土地）。若为集体土地，根据《土地管理法》第六十三条，集体经营性建设用地入市需符合规划并依法登记，且不得用于商品住宅开发。若甲方（社区居委会）未经法定程序将集体土地用于商业开发，合同可能因违反法律强制性规定而无效。
如果是划拨土地，根据划拨土地的用途限制，若协议约定将划拨土地用于“商业、商务”开发（非公益性、保障性），直接违反《土地管理法》第五十四条，合同无效；即使包含保障房，但混合商业用途需拆分审批，否则整体用途不合法。
另，本案中涉案合同以一方出资，一方出地为合作方式，以共同投资、共享利润为目的，以建成后房屋使用权分配为合同目的具体实现。符合合作开发房地产合同法律关系的核心要素，应为合作开发房地产合同。《最高人民法院关于审理涉及国有土地使用权合同纠纷案件适用法律问题的解释 》第十六条的规定：“土地使用权人未经有批准权的人民政府批准，以划拨土地使用权作为投资与他人订立合同合作开发房地产的，应当认定合同无效。”
2、合同效力风险点
（1）主体资格问题
甲方为“社区居民委员会”，依据《城市居民委员会组织法》第二条，居委会是基层群众自治组织，不具备独立法人资格，无权代表集体土地所有权人签订商业开发协议。若未取得集体组织成员（村民会议）授权，协议可能因主体不适格无效（《民法典》第一百四十三条）。
（2）土地手续合法性存疑
协议约定“乙方已办理完土地的全部手续”，但未明确土地是否完成征收、规划调整及招拍挂程序。若土地未依法转为国有建设用地或未取得《国有土地使用证》，开发行为涉嫌违法（《城市房地产管理法》第二条），合同可能无效。
3、结论
该协议存在以下无效风险：
（1）若涉案土地为集体土地且未依法完成入市程序，协议因违反《土地管理法》第六十三条无效：
（2）若土地实际用途与规划审批不符（如以“保障房”名义进行商业开发），协议因违反土地用途管制制度无效；
（3）若甲方未取得集体组织授权或超越职权签订协议，合同因主体不适格无效；
（4）若土地为划拨土地，协议约定将划拨土地用于“商业、商务”开发（非公益性、保障性），合同违反《土地管理法》第五十四条而无效；
（5） If this case involves a real estate development contract based on cooperation.According to Article 16 of the Supreme People's Court's Interpretation on the Application of Laws in Adjudicating Cases Involving Disputes over the Contract for the Use of State-Owned Land Use Rights: "If a land userenters into a contract with others for the cooperative development of real estate using the right to use land allocated without the approval of the competent people's government,the contract should be deemed invalid." Or there is a possibility that it may be invalid without approval.
It is recommended to further verify:
(1) Land properties (state-owned/collective) and planning approval documents;
(2) The legality of Party A's procedure for signing the agreement (whether it has been voted on by the villagers' meeting);
(3) Whether the land use is consistent with the actual development content of the project.
(4) Whether the real estate project involved in the cooperative development has been approved.
(2) Analysis on whether an invalid contract can be transferred
According to Article 157 of the Civil Code, after a contract is confirmed to be invalid, rights and obligations to return property, compensate for the difference in value, or compensate for losses may arise between the parties. The rights enjoyed by the parties based on Article 157 of the Civil Code are claim rights of a debt nature, and for claim rights of a debt nature, their transfer is essentially an assignment of debt rights, and the judgment of its validity should be based on the relevant provisions of the Civil Code. Specifically, debt as a property right focuses on the property nature of debt, which is often the basis for the disposability of debt. Therefore, the first part of Article 545, paragraph 1 of the Civil Code stipulates that "a creditor may transfer all or part of the debt to a third party," which recognizes this kind of free transferability. However, for some debts, some particularly emphasize personal factors or personal trust relationships between specific individuals, while others are required to make payments to specific creditors due to certain social policy considerations. In the above cases, the free assignability of debt must be restricted. In this regard, the latter part of Article 545, paragraph 1 of the Civil Code stipulates three restrictions on the assignment of debt: (1) It cannot be transferred based on the nature of the debt; (2) It cannot be transferred as agreed by the parties; (3) It cannot be transferred in accordance with the law. As for the claim for the return of property rights in an invalid contract, it also naturally has the attribute of property and can become the subject matter of a transfer contract. For the transfer of such property right return claims, in the absence of relevant legal provisions, the above-mentioned relevant legal provisions on debt transfer can also be applied analogously.Based on the above analysis, in the case of an invalid contract, the right holder can transfer the right to return property, compensate for the difference in value, or compensate for losses that the parties may enjoy based on the invalid contract through a contract.The validity of the transfer contract with the right to return property, compensate for the difference in value, or compensate for losses after the contract is invalid should be evaluated according to the relevant provisions of the Civil Code, and the invalidity of the previous contract cannot be used as a reason to determine the invalidity of the transfer contract of such right to return property, compensate for the difference in value, or compensate for losses. The expression of intent to transfer such rights does not fall under the "cannot be transferred based on the nature of the debt," "cannot be transferred as agreed by the parties," and "cannot be transferred in accordance with the law" situations stipulated in Article 545, paragraph 1 of the Civil Code, does not violate the mandatory provisions of laws and administrative regulations, and is a true expression of intent between the parties. Therefore, the transfer contract should be deemed legally valid. If one party claims that the transfer contract is invalid on the grounds that the previous contract is invalid, the people's court should not support it.
Relevant case retrieval:
1. In the civil judgment (2020) Yue 1971 Min Chu 13972 and 28453 issued by the Dongguan Municipal First People's Court, the court discussed the validity of the comprehensive transfer of debts and credits arising from an invalid lease contract in the case where the construction of buildings on the land was not approved, resulting in a possibly invalid lease contract. The court held that the fundamental issue in this case is whether the aforementioned transfer of debts and credits is valid. Even if the lease contract for part of the buildings on the plot is invalid, the lessor still has the right to claim occupation fees, which is not directly related to the comprehensive transfer of debts and credits in this case. At the same time, in accordance with Article 89 of the Contract Law of the People's Republic of China (now the Civil Code), the comprehensive transfer of debts and credits between the parties should be valid.
2. In the appeal case of Huayang Huiliang Industrial Co., Ltd. v. Hubei Yichang Real Estate Development Co., Ltd., Huizhou (Gongmao) Engineering Development Co., Ltd. Daya Bay Company, Zeng Guanquan, and the third party, China Cinda Asset Management Co., Ltd. Guangdong Branch, concerning the transfer contract dispute over the right to use construction land, the court held that, according to Article 58 of the Contract Law, after the contract is invalid, the right to return property, compensate for the difference in value, or compensate for losses may arise between the parties. The right holder of the above-mentioned rights can transfer the above-mentioned rights through a contract. The validity of the transfer contract with the right to return property, compensate for the difference in value, or compensate for losses after the contract is invalid should be evaluated according to the relevant provisions of the Contract Law, and the invalidity of the previous contract cannot be used as a reason to determine the invalidity of the transfer contract of such right to return property, compensate for the difference in value, or compensate for losses. Case index: See Zhong Weiheng: "The right to return property, compensate for the difference in value, or compensate for losses that may arise between the parties after the contract is invalid can be used as the subject matter of contract transfer – Huayang Huiliang Industrial Co., Ltd. v. Hubei Yichang Real Estate Development Co., Ltd., Huizhou (Gongmao) Engineering Development Co., Ltd. Daya Bay Company, Zeng Guanquan, and the third party, China Cinda Asset Management Co., Ltd. Guangdong Branch, concerning the transfer contract dispute over the right to use construction land," in Du Wanghua (chief editor): Guide to Civil and Commercial Cases Adjudication of the Supreme People's Court, Vol. 3, People's Court Press, 2015 edition, pp. 70-83; also in Civil Trial Guidance and Reference, 2013 No. 3 (Total No. 55), compiled by the First Civil Tribunal of the Supreme People's Court, People's Court Press, 2014 edition, pp. 182-195.
In summary, the original contract and the transfer contract are not in a principal-subordinate relationship, and the validity of the original contract and the validity of the transfer contract should be evaluated separately. The invalidity of the original contract does not necessarily lead to the invalidity of the transfer contract.Article 545 of the Civil Code stipulates three restrictions on the assignment of debt: (1) It cannot be transferred based on the nature of the debt; (2) It cannot be transferred as agreed by the parties; (3) It cannot be transferred in accordance with the law. This provision has clearly defined the scope where debt cannot be transferred, such as inheritance rights arising from exclusive relationships, and gift rights based on personal trust relationships, etc. If the transfer contract does not have the above three restrictions, it should generally be deemed a valid contract. The legal consequences of an invalid contract have property attributes, and the right to return property, compensate for the difference in value, or compensate for losses arising from the invalid contract is a claim right of a debt nature, a legal debt arising from the invalid contract, and has transferability. Furthermore, acknowledging the validity of transferring invalid contracts is more in line with the principle of transaction stability, and the transferee can claim the corresponding rights of the invalid contract from the debtor based on the original contract. If the transfer of an invalid contract is denied, the debtor will first claim the invalidity of the contract transfer, then the dispute over the invalidity of the transfer between the creditor and the transferee will arise, and finally the dispute over the invalidity of the original contract between the creditor and the debtor will occur, which will greatly increase litigation costs.
IV. Conclusion
The joint development real estate contract may be highly likely to be invalid due to issues such as conflicts in the nature and Applications of the land involved and problems with the qualifications of the parties involved. Although the invalidity of the main contract means that the rights and obligations never existed from the outset, the right of return after the contract is invalidated can serve as the subject matter of the transfer, and the validity of the transfer contract is evaluated independently. To illustrate a serious point with a lighter one, this means that Ding has the right to obtain the right to claim the return of property based on the transfer of the invalid contract.
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