situation
I. Land use right obtained by means of transfer
When transferring a real estate project, it shall meet the conditions for real estate transfer stipulated in Article 38 of the Urban Real Estate Management Law.
It is necessary to pay all the land use right transfer fees and obtain the land use right certificate in accordance with the stipulations of the transfer contract, which is a necessary condition for the establishment of the transfer contract, and the transfer is allowed only after the transfer contract is established;
Investment and development should be carried out in accordance with the transfer contract, and transfer is allowed only after a certain development scale is completed.
There are two situations here. First, it belongs to housing construction, and the actual investment in housing construction projects should account for more than 25% of the total investment in development; Second, the land belongs to the development of a piece of land, and it is necessary to form industrial or other construction land conditions before it can be sold. The above two conditions must be met at the same time before the real estate project can be transferred. The purpose of this regulation is to strictly limit land speculation and profiteering, so as to ensure the smooth implementation of development and construction.
The second is the land use right obtained by allocation.
It shall comply with the provisions of Article 39 of the Urban Real Estate Management Law, which stipulates the conditions for the transfer of land use rights obtained by allocation to real estate development projects.
A real estate project that obtains the land use right by means of allocation must be approved by the people's government with the right of approval. After examination, except that the transfer is not allowed, there are two ways to deal with the transfer: the first way is that the transferee goes through the formalities of transferring the land use right and can only transfer it after paying the transfer fee in accordance with the relevant provisions of the state; The second is that real estate can be transferred without going through the formalities of land use right transfer, but the transferor should turn over the land proceeds from the transfer of real estate to the state or make other treatments.
If the land use right is obtained by allocation, and the real estate transfer is under any of the following circumstances, the land use right transfer formalities may not be handled with the approval of the people's government with the right of approval.
1. With the approval of the competent department of urban planning administration, the land will be used for the projects specified in Article 23 of the Urban Real Estate Management Law, that is, land used by state organs and military land; Urban infrastructure and land for public welfare undertakings; Land for energy, transportation, water conservancy and other projects supported by the state and other land as stipulated by laws and administrative regulations. Affordable housing administrative allocation. Therefore, if the affordable housing project is still used for affordable housing after the transfer, it may not go through the transfer formalities with the approval of the people's government with the right of approval.
2, private housing is still used for living after the transfer;
3, in accordance with the relevant provisions of the urban housing system reform in the State Council, the sale of public housing;
4. Part of the houses on the same land are transferred, and the land use right is transferred inseparably;
5, the transfer of real estate is temporarily difficult to determine the land use right transfer purposes, duration and other conditions;
6. According to the urban planning, the land use right should not be transferred;
7. Other circumstances in which the people's government at or above the county level stipulates that it is temporarily impossible or unnecessary to transfer the land use right.
processing method
There are two ways to transfer land: first, the land user transfers the land use right to others with or without compensation; Secondly, in the case of household contract management of land, land circulation refers to the behavior that the contractor asks for the object and the third party performs the contract with the employer instead of himself. The following is a detailed description of the land transfer treatment method:
procedure
Both parties to the transfer submit a written application-acceptance and examination of whether the shares meet the transfer conditions-on-site survey-land price evaluation-fill in the transfer application approval form-review the shares-report to our bureau for approval-and sign the Contract for the Transfer of State-owned Land Use Rights.
(2) land transfer report
1, land application
2. Land use certificate (original)
3, the original transfer contract, approval documents (involving bidding, auction, auction to provide confirmation of the transaction)
4. Transfer agreement between the two parties
5, such as change planning to provide the planning department.
6. Land evaluation report
7. Copies of business licenses, legal representatives and legal person certificates of both parties.
(3) Commitment time: 15 working days.
(4) charging standard: no charge.
(5) Policy basis
1, Measures for the Administration of Urban Real Estate in People's Republic of China (PRC)
Provisional Regulations of the People's Republic of China on Assignment and Transfer of State-owned Land Use Rights
3 provisions of the Ministry of Land and Resources on the assignment of the right to use state-owned construction land.
4. Specification for bidding, auction and transfer of the right to use state-owned construction land by the Ministry of Land and Resources
5. Regulations on the Administration of Transfer of State-owned Land Use Rights in Henan Province
6. Land Management Law of the People's Republic of China
7. Catalogue of allocated land
8. Provisions on Assignment and Transfer of the Right to Use State-owned Construction Land in Cities and Towns of People's Republic of China (PRC) [2]
way
Regarding the ways of transferring land use rights, Article 19 of the Provisional Regulations on Transferring and Transferring the Right to Use State-owned Land in Cities and Towns stipulates three ways: buying, selling, exchanging and giving. After the Urban Real Estate Management Law, Article 36 has been slightly developed, and the transfer method is stipulated as buying, selling, giving or other legal means. "Other legal means" generally include:
1. Buy and sell.
As the most extensive way of land use right transfer, the payment of land price is the consideration of land use right. Because "sale" is the main form of "transfer" of land use right, what we usually call "transfer" of land use right refers to "sale" of land use right. The following discussion about the transfer contract of land use right is actually about the sale contract of land use right, so "transfer" can be divided into two concepts: broad sense and narrow sense. When "transfer" is a broad concept, it includes all acts of land use right transfer for the purpose of changing the subject of rights; When "transfer" is a narrow concept, it has the same meaning as buying and selling.
2. Pay off the debt.
Paying off debts is a special form of buying and selling, but the terms and terms of payment are different. When buying and selling land use rights, the transfer of land use rights and the payment of premium are carried out equally, while when paying off debts with land use rights, the premium is paid first, and the paid debts are regarded as paid premiums.
3. Exchange.
If the land use right is transferred by exchange, the consideration of the land use right is not the price, but other property or specific property rights and interests. The land user transfers the land use right to the transferee in order to obtain other property or specific property rights provided by the transferee.
4. Share at a fixed price.
Stock pricing is between buying and selling and exchange, similar to buying and selling and exchange. It is similar to buying and selling because the land use right is used for pricing, and the price is like the price of buying and selling; It is similar to exchange because the land use right is used for shares, and the shares obtained are just like other property or specific property rights.
5. Joint construction.
In real estate development, joint construction and land use right pricing are all forms of cooperation in which one party leaves the land and the other party pays for Gai Lou. If an independent legal person is established for the purpose of cooperative housing construction, the consideration for the transfer of land use rights is equity; If there is no independent legal person, but the name is added, or even the name is not added, and only the property rights of the cooperative parties are allocated in the co-construction contract, then the consideration for the land use right is the property rights after the house is completed. After the distribution of property rights due to joint construction, although the original land users have part of the housing property rights and the land use rights of the occupied area and public area, they no longer have the original land use rights, which can be regarded as a special form of exchange, that is, the land users exchange part of the land use rights for housing property rights.
6. here you are.
Gift is a legal act that land users transfer their land use rights to the donee free of charge. If the land use right is donated and transferred, there is no direct consideration for the transfer of the land use right, and there is no need to pay the price or provide property rights as a corresponding condition. However, other conditions may be attached to the land use right transfer contract. For example, when land users grant land to schools, the use of land may be limited to educational purposes.
7. Legacy.
When the land user is a natural person, the death of the land user will enable his successor to obtain the corresponding land use right. When the land user is a legal person or other organization, its merger or division will also lead to the corresponding land use right of the subject after the merger or division. When the land use right is acquired through inheritance, there is no direct consideration for the transfer of the land use right, but there may be indirect consideration. For example, in the legal relationship of obtaining land use right through merger, the new company inherits the property of the original company and the debts of the original company at the same time, and the consideration for obtaining land use right by the new company may be reflected by assuming other debts of the original company.