Article 14 A cooperative real estate development contract as mentioned in this Interpretation refers to a cooperative agreement in which the parties jointly invest, share profits and share risks in real estate development with the provision of land use rights and funds as the basic contents.
Fifteenth cooperative real estate development contract, if one of the parties has the qualification of real estate development and operation, the contract shall be regarded as 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.
Article 16 If the land-use right holder, without the approval of the people's government with the right of approval, uses the allocated land-use right as an investment to enter into a contract with others to jointly develop real estate, the contract is invalid. However, if the approval procedure has been completed before the prosecution, the contract shall be deemed to be valid.
Seventeenth investment exceeds the cooperative real estate development contract, the parties fail to negotiate, according to the fault of the parties to determine the proportion of increased investment; If the reasons not attributable to the parties or the fault of the parties cannot be determined, it shall be determined in accordance with the agreed proportion of capital contribution; If there is no agreed investment ratio, it shall be determined according to the agreed profit distribution ratio.
Article 18 The actual building area of the house is less than that stipulated in the cooperative real estate development contract. If the parties fail to negotiate, it shall be determined according to the fault of the parties; For reasons not attributable to the parties or the fault of the parties cannot be determined, it shall be determined according to the agreed profit distribution ratio.
Nineteenth in any of the following circumstances, the parties to a cooperative real estate development contract request the distribution of real estate project benefits, which shall not be accepted; If accepted, the prosecution shall be dismissed:
(a) the real estate construction project that needs to be approved according to law has not been approved by the competent department of the people's government with the right of approval;
(two) the real estate construction project has not obtained the construction project planning permit;
(three) to change the planning of construction projects without authorization.
The losses caused by the fact that the parties conceal the change of construction project planning shall be borne by the parties according to their faults.
Article 20 If the actual construction area of a house exceeds the planned construction area, and after the approval of the competent department of the people's government with the right of approval, the parties fail to reach an agreement on the allocation ratio of the house exceeding the planned construction area, the profit distribution ratio shall be determined according to the agreed proportion. If negotiation fails, the proportion of increased investment shall be determined according to the agreed investment proportion; If there is no agreed investment ratio, it shall be determined according to the agreed profit distribution ratio.
Twenty-first parties in violation of the planning and development of housing, the competent department of the people's government has the right to approve the demolition of illegal buildings, the losses borne by the parties can not be negotiated, according to the fault of the parties to determine the responsibility; If the fault cannot be determined, the responsibility shall be determined according to the agreed proportion of capital contribution; If there is no agreed proportion of capital contribution, the responsibility shall be determined according to the agreed proportion of profit distribution.
Article 22 A cooperative real estate development contract stipulates that the profit distribution ratio shall be determined only according to the amount of investment. If each party fails to pay the capital contribution in full, the profits will be distributed according to the actual contribution ratio of each party.
Twenty-third parties to a cooperative real estate development contract request that the housing advance payment be used as an investment to participate in the profit distribution, which shall not be supported.
Twenty-fourth cooperative real estate development contracts stipulate that the parties who provide land use rights do not bear business risks and only charge fixed interest, which is regarded as a land use right transfer contract.
Twenty-fifth cooperative real estate development contract stipulates that the parties who provide funds do not bear the business risks and only allocate a fixed number of houses, which shall be recognized as a house sales contract.
Article 26 If the parties to a cooperative real estate development contract agree not to bear operational risks and only charge a fixed amount, it shall be deemed as a loan contract.
Twenty-seventh cooperative real estate development contract stipulates that the parties who provide funds do not bear operational risks and only use the house by lease or other forms shall be recognized as a house lease contract.
Extended data:
Real estate co-construction is a common form of real estate development, and there are many problems in practice. The following is a detailed explanation of the existing legal problems.
First, the definition and characteristics of joint construction
The so-called co-construction refers to the behavior that one party provides the land use right and the other party provides funds for cooperative housing construction, and manages or distributes the benefits of the completed real estate. What we usually call co-construction agreements, cooperative development contracts and joint development contracts are all co-construction contracts.
From the definition of the concept, it is not difficult to find that the joint development of real estate belongs to the joint venture of legal persons stipulated in the General Principles of Civil Law, which has the following characteristics:
(1) subject specificity. Reflected in the joint development of both sides must have more than one real estate development qualification. Article 15 of the Supreme People's Court's Interpretation on Applicable Legal Issues in the Trial of Disputes over State-owned Land Use Rights Contracts stipulates that at least one party must be qualified for real estate development, otherwise, the joint construction contract will be deemed invalid.
The Regulations on the Management of Real Estate Development and Operation puts forward higher conditions for the establishment of real estate development enterprises: to establish a real estate development enterprise, in addition to the conditions for the establishment of enterprises stipulated by relevant laws and administrative regulations, it should also meet the following conditions:
(1) The registered capital is more than 1 ten thousand yuan;
(2) There are more than 4 full-time technicians in real estate and construction engineering with qualification certificates, and more than 2 full-time accountants with qualification certificates.
The people's governments of provinces, autonomous regions and municipalities directly under the Central Government may, according to local actual conditions, put forward higher requirements for the registered capital and professional and technical personnel to set up real estate development enterprises. Ensure that companies entering this field have corresponding development capabilities.
(two) to implement the principle of unity of responsibility, right and benefit.
In practice, many joint development behaviors are deemed invalid by the court because they violate the basic principles of joint venture. For example, in the joint development agreement signed between Company A and Company B, it is stipulated that Company A is only responsible for providing construction land and does not participate in project construction management. No matter whether the project is profitable or not, Company B should give Company A some benefits. ..
. According to the Supreme People's Court's "Answers to Several Questions on Trial of Joint Venture Contract Disputes", such clauses belong to the "guarantee clauses" of joint venture contracts and should be deemed invalid.
According to the new provisions of the Supreme People's Court's Interpretation on Applicable Legal Issues in the Trial of Disputes over State-owned Land Use Rights Contracts, such contracts are no longer directly deemed invalid, but changed, that is, recognized as loan contracts.
It should be pointed out that the so-called unification of responsibilities and rights refers to the status of both parties in the whole contract, which means that the rights and obligations of both parties are unified from a macro perspective, and it does not mean that both parties must pay and benefit equally in any link of development.
For example, in the construction project of a project, a company without real estate development qualification will not participate in the specific management work (or just send someone to supervise it), but the real estate company will take full responsibility, which does not mean that it violates this principle.
(3) The legal relationship is complicated.
The joint development of real estate involves many legal relations, which is more complicated. First of all, the relationship between the two partners, as mentioned above, should be a joint venture, which is divided into legal person joint venture and loose joint venture. The organizational form and the distribution of rights and obligations need to be carefully agreed (this article will analyze it in detail).
Secondly, the relationship between the consortium and the government's subjective departments. All aspects of real estate development, from project establishment, planning, construction, pre-sale and acceptance, are inseparable from the supervision of government departments. The most intuitive performance is to apply for multiple licenses or approval documents.
Joint development needs to be approved by government departments, and documents or approvals should be handled in the names of both parties. Only in this way can joint development be recognized by law. Cases in which one party's rights and interests are damaged or the cooperation contract is deemed invalid by the court due to the failure to do a good job in the examination and approval of joint development are all logical and the lessons are very painful.
Thirdly, the relationship between the consortium and other units or individuals includes construction contractors, demolition and resettlement personnel, house owners, loan and mortgage cooperative banks, etc.
Two, the main types of real estate co-construction and its legal nature
In the field of real estate joint development, there are many irregular operations and various types of joint construction. Correctly distinguishing its types is conducive to judging its legal nature and confirming the validity of the contract. Now several common types of joint venture contracts and their legal nature are analyzed as follows:
1. Both parties * * * jointly provide the land for construction, * * * jointly contribute, * * * jointly handle the construction examination and approval procedures, and * * * jointly take charge of the construction. After the house is completed, both parties shall jointly acquire or separately acquire the property rights of the completed house according to the contract.
In this kind of contract, because the planning permit is obtained in the name of both parties, according to the relevant provisions of the Ministry of Construction's Principles and Opinions on Several Policy Issues Concerning the Registration of Urban Housing Ownership, both parties can obtain the property right of the completed house according to the contract agreement or the proportion of capital contribution, and handle the property right registration. ?
As can be seen from the specific rights and obligations of this contract, the main parties to this contract are * * * to contribute, * * * to jointly operate, * * * to enjoy the benefits, and * * * to take risks for the same cause. This kind of housing co-construction behavior is essentially an economic cooperation behavior, and its rights and obligations are similar to the partnership relationship in civil legal relations. A joint construction contract shall be recognized as a joint housing construction contract.
Second, one party provides land for construction and the other party contributes. The two sides have gone through the examination and approval procedures for land transfer and joint construction, and both sides are responsible for the construction. Both parties shall enjoy the benefits and bear the risks according to the investment proportion agreed in the contract. This kind of contract is a typical form of joint housing development because it meets the legal conditions of real estate management and development.
Third, one party provides construction land in its own name and obtains the approval procedures for building, while the other party contributes and is responsible for the construction. Both parties respectively obtained the property rights of the completed houses according to the proportion agreed in the contract. This kind of housing joint construction is more common, mainly between those who have land and no money and those who have money and no land.
In this kind of contract, the other party participates in the real estate development of one party in the form of investment, because the construction approval procedures such as planning project permit are collected by one party. According to the relevant laws and regulations, this method is essentially a transfer of real estate, and the property right of the house should first be enjoyed by the party holding the building approval procedures. Only after one party has registered the housing rights can the property rights be transferred to the other party in accordance with the contract.
According to Article 4 1 of China's Real Estate Management Law, the rights and obligations stipulated in the land use right transfer contract will be transferred when the real estate is transferred. When one party transfers the property right of the house to the other party, the land use right occupied by the house is also transferred. Therefore, this kind of contract not only has the nature of housing transfer, but also has the nature of paid transfer of land use rights.
Fourth, one party provides land and funds for the construction, obtains the construction approval procedures in its own name, and is responsible for the construction itself. The other party only provides certain funds according to the agreed unit price and area. After the building is completed, one party will give the other party specific property rights or high returns according to the contract. This joint construction method is also very common.
When the land use right is insufficient, the party who enjoys the land use right often takes this way to attract another enterprise to participate in the "* * * simultaneous development". Because the investors who participate in the construction obtain the property right or high return of a specific house without taking any economic risks, and have not gone through the examination and approval procedures for joint construction, do not have the qualification for building development, and do not actually engage in construction and real estate development activities, this form of participation in construction is essentially an illegal financing act.
This kind of contract belongs to the "guarantee clause" of the joint venture contract according to the provisions of the Supreme People's Court's "Answers to Several Questions on the Trial of Joint Venture Contract Disputes", which should have been deemed invalid. However, according to the new provisions of the Supreme People's Court's Interpretation on Applicable Legal Issues in the Trial of State-owned Land Use Right Contract Disputes, this kind of contract is once again recognized as a change contract, that is, a financing loan contract.
In short, there are various forms of housing joint construction, but no matter what form of housing joint construction, we should correctly grasp its legal characteristics and confirm its legal nature according to the contents of the contract. Only in this way can we correctly judge the validity of the contract.
References:
Baidu encyclopedia-cooperative building