1. Can the relocated house without real estate license be bought and sold, and whether the agreement signed by the buyer and the seller is valid?
Article 38 of People's Republic of China (PRC) City Real Estate Management Law stipulates: "The following real estates may not be transferred: …… (6) Those that have not registered and obtained the ownership certificate according to law ……". The real legislative intention of this article is not to prohibit the re-transfer of pre-sale commercial housing, but to facilitate administrative management, which does not belong to the prohibition of contract effectiveness. As long as the seller has the demolition agreement and the relocation certificate, he has obtained the quasi-ownership of the house and has the right to dispose of the house he has placed. Therefore, as long as the intentions of both parties are true and do not harm the interests of the state, the collective or the third party, the house can be transferred before the property right certificate is obtained, and the real estate sales contract signed by the buyer and the seller is valid.
2. Is the agreement that the house transaction tax shall be borne by the buyer valid?
Since the emergence of the second-hand housing market, the business tax and personal income tax that should have been paid by the seller have been passed on to the buyer by agreement. Everyone familiar with the second-hand housing market knows that this is the "hidden rule" of the second-hand housing market. Is the agreement between the two parties to the house transaction legal and valid? This agreement between the two parties to the housing transaction does not violate the mandatory provisions of relevant laws and regulations. Although China's tax management laws and regulations have clear provisions on tax types, tax rates, tax amounts and taxpayers, it does not prohibit taxpayers from agreeing to pay taxes with contract counterparts or third parties, that is, there is no mandatory or prohibitive provision for the actual taxpayers. Therefore, if the parties to a contract agree that the counterpart of the contract or the third party will actually pay the tax, which does not violate the law and does not harm the national interests, the agreement shall be deemed valid.
It is worth noting that the sale of relocated houses involves two taxes: one is the tax that the original owner needs to pay when obtaining the house ownership certificate, and the other is the tax that the original owner generates when transferring. How to bear these two taxes and fees should be clearly stipulated in the contract.
Three. Issues requiring special attention
The above points will also be involved in the general housing sales contract, but for the relocation housing sales contract, we need to pay special attention to the following points and stipulate the corresponding liability for breach of contract.
1, to prevent "one room for several sales"
It is impossible to register the advance notice of the sale of the relocated house, leaving a loophole for the seller to "sell more in one room". Once the house price rises and the default cost is too low, the seller is very likely to sell the house to others.
At present, China's civil legislation adopts the creditor's rights formalism mode of property right change, that is, there is an effective creditor's rights contract between the parties and the delivery or registration procedures can produce the legal effect of property right change. Commercial housing sales contracts signed by the seller for many times shall be valid without violating the prohibitive provisions of the law. In this case, the buyer who goes through the formalities of commercial housing registration first obtains the ownership of commercial housing; Secondly, the seller delivered in advance, and the buyer has legally obtained the ownership of the commodity house, except that the seller and the buyer colluded maliciously; If several buyers do not own the house, the buyer's request to perform the pre-sale contract established according to law shall be supported.
Therefore, the seller is not allowed to transfer the house to others, and it is very important to stipulate the corresponding liability for breach of contract.
2. Be sure to agree on the time of property handover and delivery.
When signing the relocation house sales agreement, the seller failed to obtain the real estate license and could not handle the transfer formalities. Therefore, it is necessary to agree on the time of property transfer. In practice, although it is impossible to guarantee when to obtain the real estate license, it is necessary to clarify the transfer procedures of house ownership from the date of obtaining the real estate license.
When signing the agreement for the sale of relocated houses, it is necessary to determine the specific delivery time. If the existing house is signed at the time of signing the contract, the down payment date may be agreed as the delivery time.
3. The buyer shall keep the balance.
There are many risks in selling houses without a license, so it is very important to standardize the liability for breach of contract. However, if the breaching party is required to bear the liability for breach of contract, it will need to pay court costs, attorney fees, time and other costs. If there is a final payment (large final payment) for buying a house, the seller thinks that the default income is less than the final payment, and the buyer's default probability will be greatly reduced. Of course, how to keep the money and sign the sale agreement smoothly requires high negotiation skills of real estate agents or buyers.
4. Ask the seller's spouse to sign.
In practice, relocated houses generally belong to the property acquired by husband and wife during the marriage relationship. According to the relevant provisions of the Marriage Law, the property should belong to the joint property of husband and wife, and one party should obtain the consent of the other party, otherwise there may be two legal consequences: first, the rising house price and the spouse's excuse of not agreeing to sell the house may have invalid legal consequences; Second, if the seller's husband and wife divorce before the transfer, it involves the division of property with * * * *. The above two situations can be basically prevented as long as the seller's spouse signs and supplemented with necessary clauses.
5. Try to get the successor of the seller of the first order to sign it.
Because of the uncertainty of obtaining the property right certificate of the relocated house, before obtaining the property right certificate, if something happens to the seller, the relocated house may be divided by the heir as an inheritance. Therefore, the agreement on the sale of relocated houses should be signed by the first heir of the seller as far as possible to show the approval of the seller's sale and the abandonment of inheritance rights. Generally speaking, sequential heirs include spouses, parents and children. In practice, when asking the seller's first heir to sign, we must pay attention to the way and skills of speaking to avoid unpleasantness.
Four. The Legal Nature and Consequence of "Changing the Contract"
The above three points can be used universally when signing a contract for the sale of relocated houses or a formal contract for the sale of commercial houses without house ownership certificates. However, when signing a formal commercial housing sales contract without housing ownership certificate, it often involves the problem of "changing the contract". What are the legal nature and legal consequences of "changing the contract"?
Legally speaking, "changing the contract" is actually an act that the last family cancels the contract with the developer, and then the developer directly signs a new commercial housing sales contract with the next family for transfer. In the pre-sale of commercial housing, investors (the last one) want to speculate in real estate, and developers also want to raise some construction funds. The two sides have the same interests and hit it off. Some investors agreed with the developers when they bought the house, so that they could provide convenience when changing the contract. There is still a long time from signing the contract to handing over the house. After signing the contract, investors will wait until the house price has risen almost before handing over the house for sale. Otherwise, they will pay 5.5% business tax within five years, which reduces the profits of real estate speculation. If it is sold after 5 years, it will occupy funds for a long time, which is contrary to the original intention of real estate speculation. In order to get rid of them as soon as possible, their bids are generally slightly lower than those of developers in the same period.
"Changing the contract" is essentially to use the legal form of the real estate transfer contract to cover up the illegal purpose of tax evasion and damage the national tax interests, which obviously violates the provisions of Article 52 of the Contract Law and should be deemed invalid.
But as mentioned above, the contract for the sale of relocated houses (commercial houses) without real estate license is valid, and "changing the contract" is really not allowed. Are the two contradictory? Not contradictory. The contract for the sale of relocated houses (commercial houses) without real estate license can be transferred to the next house after obtaining the real estate license from the previous house and paying the relevant taxes. Of course, the contract is valid. In other words, the "contract change" clause is invalid, but it does not affect the validity of other terms of the contract.
Please refer to: relocation house sales contract model/fc/5/98.html.