The so-called joint development of real estate refers to the real estate development mode in which one party provides the right to use construction land and the other party provides funds, technology and labor services according to the agreement between the two parties. And cooperate in land development, real estate construction and other projects, take risks and enjoy the benefits. The party providing the land use right is called the land supply place; The other side is a real estate development enterprise engaged in real estate development and management, which we call a builder. The joint development of real estate in this sense is narrow. Broadly speaking, any real estate project jointly undertaken by both parties can be included in the scope of joint real estate development, not limited to the land invested by one party, but also jointly funded by both parties. Not limited to real estate development and operation, but also can be used for building houses for personal use; Both parties are not only legal persons or other organizations, but also cooperation between legal persons or other organizations and natural persons or natural persons; It is not limited to building on state-owned land in urban planning areas, but also can jointly build houses on collective land.
In real life, we can see that the joint development of real estate is a typical joint venture contract in terms of organizational form and contract nature. According to the different forms of cooperation and organization, joint development of real estate can take the following three ways:
(1) Establish a new legal person. According to Article 27 of People's Republic of China (PRC) Urban Real Estate Management Law: "Land use rights obtained according to law can be used for joint venture and cooperative development and management of real estate at a fixed price in accordance with this law and relevant laws and administrative regulations", thus establishing the legal basis for joint development of real estate with land use rights as capital contribution. The land invested or provided by both parties shall be established as a project company according to law and developed in the name of the project company. Both parties shall bear risks and share profits in proportion to their investment or through contracts. This kind of development in the form of project company can relatively reduce the probability of disputes. But at the same time, there are many shortcomings: for example, it takes some time to set up a project company and a standardized management organization, which is expensive and easy to miss business opportunities; For example, if the land use right is invested, it is necessary to go through the formalities of transferring the land use right. On the one hand, it takes a certain period, on the other hand, when the land use right is obtained by allocation, this procedure cannot be completed. More importantly, the profits of the project company can only be handed over to the joint developer after paying the income tax, which is of course uneconomical for the partner.
(two) the formation of joint management institutions. That is, a joint management organization composed of several personnel from both sides is responsible for coordinating various relations between the two sides in joint development, making decisions on major issues in cooperation, and specifically managing and developing projects. The highest difference between the joint management organization and the project company is that it can only be used as an internal management organization, but not as an independent civil subject, and it does not have the capacity to conclude contracts and other civil rights, nor can it bear civil liabilities independently. Both parties to the joint development must have a clear understanding of the legal status of the joint management organization and pay attention to avoiding using the name of the joint management organization to carry out related civil activities. In practice, there have been cases in which a construction enterprise sued a project "joint office" to the court in order to pay for the project, which obviously listed the wrong defendant. Another case is not so simple: the "Joint Management Committee" formed by the two parties involved in the joint development of a project not only exercised their internal capabilities, but also publicly hanged, engraved and signed the "Construction Contract for Building Projects". Finally, the construction unit took the two parties to court on the grounds of defaulting on the project payment. In order to avoid this situation, both parties to the joint development must have a clear understanding of the legal status of the joint management institution and pay attention to avoid using the name of the joint management institution externally.
(3) Do not set up a project company or joint organization, but independently perform obligations and share benefits according to the contract. This method is mainly used for relatively simple projects.
The latter two modes are relatively loose cooperation modes compared with the operation mode of establishing a project company, so the two parties are prone to disputes in cooperation. In practice, a controversial question is: Are the two parties jointly responsible for all the responsibilities arising from the project (whether directly generated in the name of any party)? If the contract focuses on the investment agreed by both parties, that is, one party provides the land use right and the other party provides funds, and after the project is completed, both parties jointly sell it, share the risks and enjoy the benefits, then this contract is a partnership contract, and this joint venture is a partnership joint venture, and both parties are jointly and severally liable for the debts arising from the joint development of the project. If the contract stipulates the rights and obligations of both partners in joint development, if both parties operate independently, if one party of the contract clearly only provides land, and the other party is only responsible for completing certain construction tasks on the land, the builder will get a certain number of houses in return after completing the construction tasks, then this contract is a mutually beneficial mixed contract for processing and contracting, and both parties are independently responsible for their respective actions. If both parties agree in the contract that one party only provides funds, does not participate in any operation of the project, and only obtains a certain number of houses in return after the project is completed, and it is agreed in the contract that it will not bear any risks and responsibilities arising from the project development process, it is a formal joint development to achieve the illegal purpose of mutual financing, which does not conform to the relevant provisions of Chinese laws and should be considered as an invalid contract.
Some people think that joint development projects are jointly operated by both parties and share profits and losses. Based on the principle of equality of rights and obligations, both parties with the same interests shall be jointly and severally liable for the debts incurred by either party due to the project. As for the division of their respective responsibilities in the joint development agreement, it can only be used as the basis for internal recovery. According to this view, as long as the court can determine that the debt is caused by the joint development project, it can order the parties to the joint development to bear joint and several liabilities, without specifically distinguishing whose responsibility or which party signed it, and without being affected by the division of their respective responsibilities in the joint development contract. This view is mainly because the behavior of joint development is not defined in law. In fact, the behavior of joint development, due to the different contents of the contract signed by both parties, bears different rights and obligations, and its legal nature and legal consequences are also different. Therefore, the joint development contract of real estate has become the most important key point in the joint development of real estate, and signing a complete joint development contract is the key to avoid disputes.
Second, the characteristics of real estate joint development contract disputes
Real estate development projects are large and small, ranging from residential areas with a building area of several thousand acres to hundreds of thousands of square meters to independent single buildings. Real estate development has a large investment, a long production cycle, and a wide range of laws, regulations and policies involved, which is prone to disputes. The characteristics of real estate joint development contract disputes are large litigation object, complex dispute content, heavy litigation interests of the parties to the dispute and long litigation period. In addition, such disputes involve a wide range, involving laws, regulations and national policies. No matter the case published in the Supreme People's Court or the case published online, there are many disputes about cooperative development all over the country. According to incomplete statistics, cooperative development disputes account for a large proportion in real estate litigation cases.
According to online reports, Chengdu Jindi Real Estate Company and Xinte Industrial Co., Ltd. jointly developed a garden project. Jindi Real Estate Company is responsible for the overall development, and Xinte Company shares the land use right for cooperative development. In the process of jointly developing a garden project, the two companies proposed to increase the development income due to the substantial appreciation of the land provided by Xinte Company, while Jindi Company, which is responsible for the overall development and construction, believed that Xinte Company's requirements violated the original intention of the contract. At the same time, in the actual process of selling houses by Jindi Company, Xinte Company believes that the price is low, which is detrimental to its interests. Many times, it sent people to a garden to post "customer information", which affected housing sales and caused conflicts between the two sides. This led to serious violence, and the local public security bureau also set up a task force for it.
Third, the subject of the real estate joint development contract.
The joint development of real estate refers to the joint operation of real estate projects jointly developed by * * * with the approval of state functional departments according to the agreement of all parties. According to the current laws and regulations, real estate joint development should be legal and effective, and cooperative projects must be approved by relevant government functional departments, and relevant administrative examination and approval procedures such as planning, land use, investment in fixed assets and construction must be obtained. At the same time, the joint development contract shall not violate national laws and regulations. Therefore, the subject of the real estate joint development contract is a special subject.
Only enterprises with legal real estate development qualifications can develop real estate. National laws and local regulations clearly stipulate the registered capital of development enterprises and the conditions of professional and technical personnel. It also stipulates the conditions for developing enterprise qualification grades and the housing area that enterprises of different grades can develop. These special regulations are formulated to ensure that companies entering this field should have corresponding conditions and development capabilities, and strictly distinguish enterprises that do not have development qualifications. Enterprises with real estate development qualifications can develop independently or jointly. Although not qualified for real estate development, enterprises and institutions with land use rights can participate in joint real estate development projects with land use rights. Enterprises and institutions that have land use rights but do not have development qualifications, although they cannot develop real estate projects independently, but jointly develop with their own land use rights and qualified real estate development enterprises, and are approved by state functional departments, their joint construction contracts are deemed valid. The preconditions for this kind of special subject to sign an effective joint development contract are: they must have the land use right, which must be used as the form of joint development investment, the joint development contract must be approved by the government functional departments, and the other party to the joint development must have the corresponding real estate development qualification certificate.
Since August 1 2005, Article 3 of the Supreme People's Court's Interpretation on the Applicable Legal Issues in the Trial of Disputes over State-owned Land Use Rights Contracts stipulates that a cooperative real estate development contract refers to an agreement concluded by the parties to carry out cooperative real estate development with land use rights and funds as * * * investment, * * * income and * * * risk. If one party to a cooperative real estate development contract is qualified for real estate development and operation, the contract shall be deemed valid. If both parties are not qualified for real estate development and operation, this contract is invalid. However, if one of the parties has obtained the qualification of real estate development and operation before the prosecution or has cooperated to establish a real estate development enterprise with the qualification of real estate development and operation according to law, the contract shall be deemed valid. Without the approval of the people's government with the right of approval, if the land use right holder makes a contract with others to jointly develop real estate with the allocated land use right as investment, the contract shall be deemed invalid. However, if the approval procedure has been completed before the prosecution, the contract shall be deemed to be valid.
Four, several types of real estate joint development contract disputes.
(1) Disputes arising from invalid contracts
1, called real estate joint development, is actually a loan. Enterprises without development qualifications participate in the joint construction of real estate projects in the form of capital contribution. The characteristics of this kind of joint construction are: (1) At least one of the participants in the joint construction contract has neither real estate development qualification nor land use right contribution. (2) The co-construction contract clearly states the guarantee terms (some are cash guarantee and some are house guarantee); Although some do not specify the guarantee terms, they often have an agreement to return the principal and interest or pay dividends or share profits after the project is completed. (3) Investors without development qualification will not participate in the co-construction process or development and operation.
2. It is called real estate joint development, but it is actually project transfer. The transfer of real estate projects must conform to the conditions and procedures stipulated by laws and regulations. Some project owners transfer development projects to other enterprises in the form of joint venture contracts, and do not go through the procedures of project transfer and land use right transfer with the relevant departments. The characteristics of this co-construction are: (1) The transferor of this contract is generally a real estate enterprise with the right to develop the project, while the transferee is a real estate development company, some are not real estate development companies, and some are even natural persons. (2) The transfer of such projects, some simply do not have the conditions for project transfer, nor have they been approved by functional departments. (3) Both parties to the joint venture contract neither handle the transfer procedures of the project nor the transfer procedures of the land use right. (4) The title of this kind of contract is the joint construction contract, and the content is the complete transfer of rights and obligations of the development project.
3. Enterprises without real estate development qualification participate in joint construction. Enterprises without real estate development qualifications participate in joint construction in the form of joint construction contracts. Features of this co-construction: (1) One of the co-builders has no development qualification. (2) The party without development qualification not only contributes capital, but also participates in project development and operation. (3) The joint venture contract has not been examined and approved by the functional department.
4. Joint venture contract based on illegal construction projects. For example, the project has not been approved by the state functional departments, and both parties have illegal construction, and one party has no land use right. For example, in the appeal case of real estate contract between Nanchang Administration for Industry and Commerce of Jiangxi Province and Nanchang Branch of China People's Insurance Company, the court of second instance held that the Agreement on Joint Development Project was an agreement signed by the Municipal Administration for Industry and Commerce, Wan Xin Society and the municipal insurance company to jointly develop real estate projects. When signing the agreement, the Municipal Administration for Industry and Commerce, as the place of departure, did not enjoy the land use right of the building, nor did it go through the legal procedures for the construction and land use of the building. Although Nanchang Land and Resources Bureau approved the transfer of the land originally allocated to donghu district Commercial Housing Development Company to the Municipal Administration for Industry and Commerce in May 438+0997+10, it was clearly stipulated that the allocated land shall not be transferred or jointly developed. During the second trial of this case, Nanchang Municipal Bureau of Land and Resources agreed to convert the allocated land use right into state-owned land use right, and issued a certificate of state-owned land use right to the Municipal Administration for Industry and Commerce. However, the Municipal Administration for Industry and Commerce has not yet signed a land use right transfer contract with the Municipal Bureau of Land and Resources, failed to pay the land transfer fee, and failed to go through the examination and approval procedures for joint construction and the registration procedures for the change of land use rights. Therefore, it is correct for the court of first instance to determine that the joint development agreement is invalid according to the relevant national laws and regulations.
(two) disputes caused by breach of contract in violation of the real estate joint development contract
1. Failing to invest co-construction funds on time as agreed in the contract. This kind of default is more common. The defaulting party will often fail to make investment as agreed in the contract for various reasons. The main solution is to modify the proportion of capital contribution and dividends, or to re-agree on the distribution of benefits according to the actual proportion of capital contribution. Some are solved by the defaulting party bearing a certain penalty and reaching a supplementary co-construction contract again.
2. The breaching party fails to distribute the house or profit as agreed in the contract. Such disputes often appear in the late stage of joint venture contracts. According to the practice of this kind of case agency, the most common allocation method for all parties involved in joint construction is housing allocation, because the agreement on housing is the simplest, practical and easy to operate. There are many uncertainties and variables in profit distribution. The defaulting party of such disputes often sells or uses the houses shared by the other party for mortgage loans, which seriously damages the interests of the observant party.
3. One party is in fundamental breach of contract, and has been in breach of contract for a long time, and no longer has the strength to invest as agreed, and is unwilling to voluntarily withdraw from the joint construction. Such disputes are often filed by the observant party, demanding that the defaulting party bear the liability for breach of contract and terminate the contract.
4. Both parties or both parties have breached the contract, which is more important. The litigation of this kind of co-construction dispute often takes a long time, and the contradiction between the parties is deep and difficult to solve.
5. One party will go behind the other and rebuild with the other party. Disputes arising from violation of the co-construction contract have harmed the interests of the observant party. Some of these disputes were initiated by the observant party, and some observant parties were listed as defendants or third parties to participate in the proceedings. The defaulting party carries out joint construction behind the other party's back, often because the defaulting party lacks funds, and introduces the other party's funds in the form of joint construction, which is the so-called joint construction, which is actually a loan.
There are various forms of breach of contract in the co-construction contract, most of which are the above five types. There are other cases of breach of contract, such as the joint construction party failing to hand over the land on time, or failing to go through the joint construction approval procedures on time as agreed. In short, there are many forms of breach of contract.
Five, signed a real estate joint development contract should pay attention to the problem.
Because real estate development is a systematic project with long cycle, large investment and wide coverage, covering the whole process from land use right acquisition, demolition and resettlement, bidding, project design, construction, supervision, equipment installation to housing sales and property management, it is a complete systematic project involving all aspects, so it is particularly complicated. Real estate joint development contract should specify the rights and obligations of both internal and external parties in the process of real estate development in detail, because the interests of both parties are contradictory and unified in cooperation, and there is a conflict of relative interests in the overall consistency of interests, so the relationship between the two parties is prone to disputes once it is handled carelessly in the process of cooperation; Once a dispute occurs, because the corresponding legal provisions in China are not specific at present, the understanding of its legal nature is not the same in practice, and the litigation period is generally very long, and the consequences are unpredictable. Therefore, when signing a joint development contract, in addition to the problems that should be paid attention to and the contents that should be clarified in general real estate development, we should also grasp the contents and key points in the joint development contract of real estate from several aspects:
(a), the contract responsibility should be clear. Make a detailed agreement on the way, time and place of performance of each obligation, and put an end to vague terms. It is suggested to use attachments and attached drawings for specific explanation. The supplier shall provide accurate information, such as location, area, service life, nature of land use right, approval documents or certificates, and bear the responsibility. The construction party should mainly make a clear commitment to the payment of funds.
(2) Both parties to the contract shall clearly share the benefits, risks and losses. Make a clear agreement on the area and location of the property. The ultimate goal of joint development is to obtain income, which is generally reflected in the distribution of real estate. At this stage, the conflict of interests between the two sides is the most acute, so it is also a link with frequent contradictions. The value of real estate has a lot to do with lots, although different lots of the same project often lead to different values. Some joint development contracts simply stipulate the proportion of distribution, without mentioning the specific location, so the dispute over distribution is not difficult to understand. In addition, due to planning changes and other reasons, there are often differences between the area agreed in the joint development contract and the completed area, and how to deal with them should also be agreed in advance.
(3) The contents of the contract should be legal. Article 6 1 of the General Rules for Loans issued by the People's Bank of China stipulates: "Enterprises shall not engage in lending or disguised financing business in violation of state regulations", thus constituting the contract invalid, and the profit purpose that the parties hope to achieve through joint development will also be frustrated. In addition, according to the laws of our country, the allocated land use right shall not be jointly developed with others. Because of its free and low compensation, the law has special provisions on its transfer. The Law on Urban Real Estate Management stipulates that if the right to use state-owned land is obtained by allocation, the transfer of real estate shall be reported to the people's government with approval authority for examination and approval in accordance with the provisions of the State Council. If the people's government with the right of approval grants the transfer, the transferee shall go through the procedures for transferring the land use right and pay the transfer fee for the land use right in accordance with the relevant provisions of the state. Therefore, the joint real estate development contract signed with others by way of land allocation before going through the above procedures should be deemed as invalid. Finally, the cooperative housing agreement must go through the examination and approval procedures in the competent department of the state, and it is of course invalid if it is not handled.
(4) Pay attention to the agreed liability for breach of contract. Real estate projects generally have a long cycle and complicated process. Inappropriate elaboration of specific liability for breach of contract can promote the parties to fulfill their obligations in good faith and ensure the smooth progress of the project. For example, the supplier fails to provide land that meets the conditions of "three links and one leveling" within the agreed time, and the contract lacks responsive breach clauses, which not only does not put pressure on the supplier, but also easily leads the construction party to seriously question its performance ability and sincerity, thus intensifying contradictions and breaking cooperation. However, if there is a clear responsibility for breach of contract, such as a one-day delay, then the distribution of several square meters of real estate will be reduced accordingly. If the delay exceeds a few days, the other party may terminate the contract and pay a certain amount of liquidated damages.
(5) Joint development should pay attention to the completeness of procedures. Joint development involves many relationships and procedures, such as the establishment of a project company, and the local land use right should be transferred to the project company name in time to avoid delaying the development opportunity; For companies engaged in real estate development, they need special qualifications, and failure to handle them in time will affect the project establishment and approval.
(six) clear the nature of the joint development of housing. Pay attention to ensuring the nature and effectiveness of joint development and housing agreements. Both parties should clearly express their intention of cooperation in the contract and jointly undertake the responsibility of jointly developing real estate. At the same time, avoid confusing the nature of land use right transfer contract, house purchase contract and joint housing development contract, and reduce disputes.
(seven) the signing of foreign contracts for real estate joint development projects. In real estate joint development projects, the signing of foreign-related contracts is rather confusing, for example, all partners sign and seal the contract, which leads to joint liability.
(eight) methods and suggestions to protect the rights and obligations of all parties in the joint development of housing. For the development and construction in the name of the investor, it is very important to protect the interests of the land provider. In practice, due to the procedural requirements of real estate development, the land use right must be transferred to the developer's name before the project is pre-sold. Since the nominal developer of the project mainly controls the construction and sales of the project, it is difficult for the land provider to effectively restrain the partners after the land use right is transferred to the nominal developer of the project. Therefore, in the process of signing the real estate joint development contract, the supplier should stipulate the relationship between the transfer of land use rights and the protection of their own interests, including the establishment of mortgage rights and the supervision method of the use of project construction funds. It is also necessary to protect the fund providers, so it is best to hire a professional law firm to provide full legal services before involving joint development projects. Hiring a lawyer to deal with disputes is far less effective than preventing them in advance.