Author: Hu Hailiang and Zou Chaogui of Guangdong Shangdian Law Firm
Since the housing reform, there has been a sword of Damocles hanging over the real estate market, which is the service life of land use rights. Most home buyers do not realize that "land use rights" and "house ownership" are two different concepts in Chinese law. They think that after buying a house, they can live in it permanently and they can enjoy it for generations through inheritance. The fact is that in our country's laws, real estate and immovable property are independent, and the property rights enjoyed by home buyers are only the ownership of the house and the right to use the land for a certain period of time. After the use period of the house land expires, it must be renewed before it can continue to be used. According to the "Land Law", "Property Rights Law" and other relevant laws and regulations, the use life of residential land is 70 years, the use life of commercial properties is 40 years, and the use life of industrial and comprehensive properties is 50 years. In reality, the useful life of the house purchased by home buyers falls far short of this standard.
Judging from the cases encountered in practice, there are several reasons for the "shrinking" of the service life of residential buildings in Huizhou:
1. Developers have "consumed" the land use life.
According to the law, residential land use rights are calculated from the moment the state transfers the land to the developer. The developer's cycle from development to sales is generally 1 to 3 years, and the "actual life" of the property rights of the house shortens as the developer's time to develop the house increases. There are also unfinished houses and vacant houses that are not selling well, especially some unfinished building renovation projects, whose effective residential land use rights are far less than 70 years, and home buyers are bound to face a significant "shrinking of housing property rights." In addition, the local real estate market is heavily influenced by historical factors. In the 1990s, Huizhou experienced a real estate development boom. Many units and individuals are frantically speculating on land and hoarding large amounts of land. Due to the limited development speed of the market and economy, the local real estate market did not flourish significantly until 2006. In these years, a large amount of land that was overdrawn in the early 1990s began to be developed, resulting in more projects with land lifespans of only 50 years.
2. The land use nature reported by the developer results in different land use years.
According to national regulations, the use life of commercial land is 40 years and the use life of residential land is 70 years. In real life, many residential projects are for both commercial and residential purposes. If the developer applies in the name of a commercial project, or changes the originally applied residential land to commercial land, it is naturally impossible to reach 70 years. Home buyers often fail to understand this and think that the state clearly stipulates that homes are 70 years old. Why is mine only 40 years old? Conflict arises from this.
It is not uncommon for homebuyers and developers to go to court due to the shrinkage of land use life, such as Zhejiang Zhao v. Zhejiang Wanda Real Estate Co., Ltd., Guangzhou Cao v. Panyu District Luting Yayuan, Huizhou local land use life wait. Home buyers who are dissatisfied with seeking explanations from developers are also frequently reported in the press. But in all fairness, it is unfair to simply put the responsibility on developers. Many times, developers are troubled by factors such as insufficient bank funds, insufficient liquidity, and incomplete relevant documents. The entire development and sales cycle is beyond the control of a single group or individual; whether payment is required after the relevant land use rights expire, national legislation The authorities have also adopted an evasive attitude, which makes it even more difficult for developers to face such lawsuits.
The author will briefly explain the laws and specific strategies related to the life of land use rights through relevant cases, hoping to attract more attention, and * * * such issues should also be dealt with.
Case 1 Commercial residential land has different lifespans. Homebuyers should be aware of land use regulations.
Case: In September 2004, Zhao from Taizhou signed a commercial housing sales contract with Zhejiang Wanda Real Estate Co., Ltd. to purchase a commercial housing located at No. 02 Kaiyue Building, Jiaojiang District, Taizhou City, for a total price of more than 800,000 yuan.
Article 1 of the contract, "Project Construction Basis", records that the method of state-owned land use rights is "transfer", and the contract number is Taikai Tuhe (2006 54 38 0) No. 35. The "State-owned Land Use Rights Transfer Contract" stipulates that the land use period is: Commercial The land is used for 40 years, the residential land is used for 70 years, and the office land is used for 50 years. Article 3 of the contract states that the land use is "commercial land". In April 2007, when Zhao was applying for the land certificate and real estate certificate, he found that the land use period was registered as 40 years. The service life has been "shrunk" by 30 years, and Zhao feels "cheated". After several unsuccessful negotiations with the developer, Zhao filed a lawsuit in court, demanding that Wanda return the overcharged land transfer fee of 379,017 yuan for 30 years.
The house purchaser believed that the "project construction basis" in the purchase contract stated "the land use period is 70 years", but when applying for the real estate certificate and other documents, it was discovered that the actual use period was 40 years. The developer committed fraud and should be The 30-year land transfer fee will be refunded.
The developer believes that the commercial housing sales contract signed by both parties states that the use method of Chinese-owned land is "transfer", which clearly states that the land use period is 40 years for commercial land, 70 years for residential land, and 50 years for office land. The first article of the contract should be an introduction to the basics of the construction project, not a commitment clause made by the developer to the home buyers that the commercial housing state-owned land will be used for 70 years.
Lawyer’s point of view: Lawyers Zou Chaogui and Hu Hailiang of Guangdong Shangdian Law Firm believe that the title of the first article of the contract is "Project Construction Basis", which is generally understood to mean that the developer explains to the buyer the planned purpose and use of the land. The number of years is not clearly stated. Its specific meaning should be understood as: "Planned uses are divided into commercial, residential and office land, with different uses and different service years. The maximum service life is 70 years and the total service life is 70 years." According to relevant regulations, commercial land The useful life is clearly 40 years. In the case where the developer has clearly marked it as "commercial land" in the third article of the contract, it is impossible to confirm that the developer has promised the buyers that the commercial housing has a useful life of 70 years based on the first article of the contract alone. It is difficult for purchasers to obtain court support for their claims.
The court’s final result: The court of second instance held that, on the one hand, the developer did not promise the plaintiff Zhao that the land use life of the commercial housing would be 70 years in the contract, and the first article of the contract was titled "Project Construction Basis" , should be understood as the developer explaining to the homebuyers the planned use and useful life of the land. On the other hand, as plaintiffs, we should also know that the maximum term of land use rights for commercial purposes shall not exceed 40 years. Therefore, the plaintiff believed that the developer had breached the contract and could not obtain a 70-year land use right certificate for the commercial housing purchased by the plaintiff, and wanted the developer to return the overcharged 30-year land transfer fee. The litigation claim lacks legal basis and cannot be supported. Judgment: The original judgment is upheld and the prosecution is dismissed.
Case 2: The land use right period is shortened, and the developer compensates for the loss.
Case: November 1999. In October, Liu signed a purchase contract with a developer and purchased two storefronts in a building on Bayi Road, Taijiang District. Article 1 of this contract stipulates that the land use period is from May 17, 1999 to May 17, 2069. From June 5438 to October 2005, Liu received the land use certificate for the purchased house and found that the land use termination date for the purchased house was May 65438 to July 2039, which was 30 years shorter than the contract agreed. After negotiation fails, both parties shall submit an arbitration application to the Municipal Arbitration Commission. The developer required Liu to pay the final payment of more than 24,000 yuan, and Liu asked the developer to compensate more than 39,000 yuan.
Buyers believe: Liu believes that when developers sell houses, they use the 70-year limit of land use rights for shops as a "selling point," which inflates the value of the house and deceives buyers. The contract is provided by the developer. The developer should be very aware of the mandatory requirement of a maximum use life of 40 years for commercial land and should not require consumers to know this requirement. When signing a commercial housing sales contract, since the developer promises a useful life of 70 years, consumers have reason to believe it. Therefore, the developer had obvious faults in the house purchase contract.
The developer believes that the 70-year land use period is for the entire building site, not Liu's individual store, so the 70-year description in the contract is correct and there is no fraud.
Lawyer comments: Lawyers Zou Chaogui and Hu Hailiang of Guangdong Shangdian Law Firm believe that if the land use period recorded in the land use right certificate obtained by the owner afterwards is shorter than the contract, the developer’s behavior has constituted a breach of contract and he should bear the corresponding consequences. liability for breach of contract. The developer's actions violated the homebuyers' right to know and contract. Consumers can safeguard their rights and interests in accordance with the Contract Law and the Consumer Rights Protection Law. However, the land use life price conversion standard has not yet been introduced. In the absence of relevant laws and regulations, the most appropriate way for home buyers is to sign a detailed contract.
The Municipal Arbitration Commission’s hearing results: The Municipal Arbitration Commission believed that in the contract signed by Liu, “the planned use of the land is commercial and residential, and the land use period is from May 17, 1999 to May 17, 2069” The clause is invalid because it conflicts with the Interim Regulations on the Assignment and Transfer of Urban State-owned Land Use Rights. According to law, Liu's store can only have 40 years of land use rights, and it is unrealistic to expect 70 years of land use rights. Therefore, the economic losses claimed by Liu lacked factual and legal basis and were not accepted by the arbitral tribunal. However, the developer provided a contract with invalid terms, which created unrealistic expectations among the home buyers and caused the developer's intention to purchase the property. The developer's fault caused certain economic losses to the home buyers, so the developer should compensate Liu 5,000 yuan.
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