From the perspective of new housing, the proportion of individuals buying commercial housing is close to 94%. The pre-sale of commercial housing is commonly known as "selling uncompleted residential flats". Compared with the sale of existing homes, the legitimate rights and interests of buyers in a weak position are more vulnerable to infringement.
1. What is the pre-sale of commercial housing?
Pre-sale of commercial housing refers to the behavior of real estate development enterprises to sell the houses under construction to the winning bidder in advance, and the winning bidder pays the deposit or house payment in advance.
Commercial housing sales are divided into existing house sales and faster house sales.
Auction sale refers to the pre-sale of commercial housing, which refers to the behavior of real estate development and operation enterprises (hereinafter referred to as "sellers") selling houses under construction to buyers in advance, and the buyers pay the deposit or house price.
As the development of China's real estate market is lagging behind, the market system is not perfect, and the real estate legal system is not perfect, for the sale of existing homes, the pre-sale of commercial housing makes the buyer only obtain the expectation right of commercial housing when signing the contract, but not the actual ownership. Only when the developer delivers the house to the buyer after completion can the buyer enjoy the real ownership and the right to possess, use and benefit the house. Therefore, the risk borne by the buyer of the pre-sale contract of commercial housing is greater than that of the existing house sales contract.
Second, the defects of the pre-sale system of commercial housing
Pre-sale contract is different from entrustment contract. The so-called "construction contract" refers to a contract in which the parties agree that one party entrusts the other party to build a house and bear the expenses. The nature of construction contract includes "sales contract theory", "finished product supply theory", "contract theory", "mixed contract theory of contract and sales" and "mixed contract theory of contract, commission and sales". However, the pre-sale contract is similar to the general sales contract in terms of payment, delivery of the subject matter, guarantee of rights, guarantee of defects and liability for breach of contract, and belongs to the sales contract in nature.
Pre-sale of commercial housing can speed up real estate financing and invigorate the real estate market. However, in the pre-sale of houses, there are many uncertain factors in the subject matter of the transaction, which makes the risks faced by the pre-buyers far greater than those of ordinary existing houses. For example, after some developers receive the house payment from buyers in advance, due to various reasons, the built projects cannot continue or even stop working, causing huge losses to buyers. Sometimes individual developers can't complete or hand over the house on time for various reasons, which leads to the failure of property buyers to stay or rent on time. Sometimes, after the property buyers pay the down payment, individual developers will use various excuses to raise the later payment, and even ask for a new down payment, which makes the property buyers feel at a loss.
Third, the risk avoidance of the pre-sale system of commercial housing
The pre-sale system of commercial housing is risky and speculative. In order to protect the legitimate rights and interests of buyers, China has strictly restricted the conditions and procedures for the pre-sale of commercial housing.
Article 44 of the People's Republic of China (PRC) Real Estate Management Law stipulates that the pre-sale of commercial housing shall meet the following conditions:
(a) have paid all the land use right transfer fees and obtained the certificate of the right to use;
(2) Holding a construction project planning permit;
(three) according to the pre-sale of commercial housing, the funds invested in development and construction have reached more than 25% of the total investment in engineering construction, and the construction progress and completion delivery date have been determined.
(four) to the real estate management department of the people's government at or above the county level for pre-sale registration, and obtain the pre-sale permit certificate of commercial housing.
It can be seen that real estate developers should have "five certificates" for the pre-sale of commercial housing: state-owned land use certificate, construction land planning permit, construction project planning permit, construction project construction permit and commercial housing pre-sale permit.
4. Should the pre-sale system of commercial housing be abolished?
It doesn't matter what sales model is adopted, what matters is that it is suitable for China's national conditions. Need to study whether the purchase of existing homes is in the interests of most people, and how many people can afford existing homes? In fact, we must really solve the problem unless the financial system is deepened.
The pre-sale system of commercial housing has played a practical role in promoting the development of the real estate market for more than ten years. At present, the proportion of pre-sale of commercial housing in major cities is generally above 80%, and some cities even reach over 90%. Pre-sale system has become an important means of real estate development and financing, and it is necessary to exist.
More than 95% of developers in China are still struggling for survival. If the pre-sale housing system is cancelled at this time, it is estimated that at least 70% of the developers in China will die within two years, and there are 60,000 developers in China. If 70% of real estate developers die, China's real estate industry will go to extremes.
The risk of the pre-sale system of commercial housing is now disturbing. If the house is a commodity, then this commodity has already carried the hopes of too many people. Sometimes even the whole delivery of a family's life's hard work will not be taken lightly.