From the perspective of developers, there are generally two reasons for the formation of uncompleted residential flats. First, developers take the initiative to uncompleted residential flats: due to policies, market conditions and other reasons, the price of commercial housing continues to fall, and the purpose of developers to build real estate is to make profits. Once developers find that they will only lose money if they continue to build, they will take the initiative to stop the development and construction of real estate, thus forming an unfinished building.
Another situation is that developers are passive: this situation generally does not involve market conditions and policy reasons, purely because the developer's capital chain is broken and real estate construction projects lack follow-up construction funds; Or developers are involved in other debt disputes and illegal construction. These are not due to the wishes of the developers, and the formation of uncompleted residential flats.
Beijing Xu Rui Lawyer In the eyes of the owner, the building has not been built yet. Can you give us a built house? If there is no house, can the developer's remaining funds and assets compensate us for the house payment?
Every real estate project has a complicated debt relationship. Developers not only owe the owner's house, but also owe bank loans and project funds, and some still owe huge loans such as usury. Once the real estate is unfinished, all parties are waving their knives and forks, cutting the real estate on the plate and other assets on the developer's account. Compared with the owners who are weak and lag behind in news, creditors such as banks and builders often start to carve up the unsold real estate and other assets of developers when there are signs of unfinished buildings, so as to reduce losses. By the time the owner found the property unfinished and wanted to defend his rights, the plate was already in a mess, leaving only leftovers. What's more, some houses that owners have already paid the house price before the online signing have been taken away by other creditors.
Although the laws and relevant judicial interpretations stipulate that the owners have certain priority in compensation, this is for the property, excluding other assets of the developer. And the main problem is that it is difficult for owners to obtain first-hand information. It is difficult for a single owner to be weak, and the owners have different opinions and low efficiency. It is often difficult to achieve satisfactory results by robbing developers of their "heritage", which we will explain in detail later.
Another concern of the owners is whether they can stop repaying the bank's mortgage loan after the property is rotten.
From the legal point of view, the housing sales contract signed by the owner and the developer and the loan contract signed by the owner and the bank are two independent contracts, and there is no intersection. No matter what happens to the owner's house, whether it collapses or fails, the debt relationship between the owner and the bank will not be affected. In a more serious direction, the owner refuses to repay the bank loan on the grounds that the house is not completed, and the bank has the right to use the owner's other property to offset the loan. At the same time, it will also affect personal credit records, so in the process of safeguarding owners' rights and interests, owners are not advised to stop repaying bank loans.
If the property is unfinished, should the owner immediately sue for check-out?
Lawyer Xu Rui of Beijing believes that it depends on different situations whether checking out is the best choice for safeguarding rights after the owner finds out that his property is unfinished.
1. If there are funds in the developer's account or there are other ways to pay the house price, the owner can bring a lawsuit to the court and demand to return the house, and then take money from the developer to leave or apply to the court for enforcement, so that the owner's rights and interests can be satisfied to a great extent. But as far as our previous case is concerned, it is extremely rare for developers of uncompleted residential flats to refund the house payment.
2. If the developer is temporarily unable to refund the owner's house payment, the owner still sues the court for returning the house, which is also successful. However, after winning the case, there is either an unenforceable blank judgment, because the unfinished property involves all aspects of debts, and it is not for the owner to apply for enforcement, and the court can solve it by drawing a piece for the owner; Either the developer left an iou saying how much he owed the owner. As for how to return it, the developer patted the empty pocket to show that there was nothing he could do, and the owner returned to the starting point again. What the owner needs to understand is that once the house return lawsuit is successful, the house sales contract between the owner and the developer does not exist, and the original relationship between the buyer and the seller has now become an ordinary debt relationship, and no longer enjoys the priority of compensation. Imagine that it is better to put the owners, banks and financial institutions in the same position as creditors to collect debts from developers. Therefore, it is not necessarily the best way to protect the rights of owners when they encounter unfinished property.
What can the owner do when the property is unfinished? How?
Lawyer Xu Rui in Beijing thinks: How can owners protect their rights and interests when buying uncompleted residential flats? In addition to what we said earlier, the developer should sue to return a house as soon as he has repayment ability and get the house payment he delivered. If the developer has no funds to refund the owner's house payment, or the real estate development company has simply run away and the building is empty, we suggest that the owners unite and hire professional lawyers to initiate a class action lawsuit.
First of all, what is the necessity of owners' organization?
In the debt relationship of uncompleted residential flats, we generally think that there are four creditors: owners, banks, construction parties and other creditors (private lending, usury, etc. ), and then in the actual case operation, lawyers often find far more than four aspects. The reason is that the owners are not a unified organization. It is very common that there are dozens of voices in an unfinished building with several hundred owners. Some owners advocate waiting for the resumption of work, some advocate petitioning, some advocate blocking the developer company, and some advocate prosecution. The power of the owners is actually very scattered. Organized owners speak with the same voice and work in the same direction, borrowing the words of a judge in Shandong: "These hundreds of indictments are piled together, and no one dares to ignore the demands of the owners."
What are the shortcomings of the owner's spontaneous organization?
Many owners of uncompleted residential flats will also set up QQ groups or WeChat groups when defending their rights, and bring the owners in. After all, the truth that "many hands make light work" is well known. However, when discussing the maintenance right scheme, it is often inconsistent. If the spies of developers or other interest units provoke differentiation and change the wind direction, the owners will soon disintegrate and their strength will be further weakened.
After repeated disintegration, some owners who are committed to safeguarding their own rights and interests have gathered together, and initially have the embryonic form of the organization and can carry out related peacekeeping operations. The advantage of this time is that the owner can concentrate on his actions. In the cases we contacted, most of the owners took the action of wearing clothes with slogans and appeals, pulling banners outside the community, sales offices, and even government-government departments, or petitioning together. Is this peacekeeping operation effective? The answer is valid, not fruitful.
Why is it effective but not fruitful? Because for uncompleted residential flats, the government has no effective solution in the short term, but it can't let the owners keep blocking the door like this, forming a bad social impact. This can only stabilize the owner first, give many promises to persuade the owner to go back, and then delay it first. If it can't be solved, we will simply go bankrupt and liquidate the developer, which can't fundamentally solve the problem. What is the fundamental problem? Returning to work or paying back the money is the fundamental demand of the owners, and it cannot be solved by pulling banners or organizing petitions.
Xu Rui, a lawyer in Beijing, believes that there are also many problems in owners' groups. Judging from the experience of our previous agency cases, there are mainly three shortcomings.
First, poor organizational skills. The owner organization we are talking about is not a pyramid structure in which one person leads others to obey, but is similar to the partner system, where everyone discusses everything. An action often takes the most time to argue and reach an agreement. When everyone agrees, it may have missed the best opportunity to take action, and the developer's assets have been divided up by other creditors.
Followed by cost and venue. The process of safeguarding the rights of uncompleted residential flats is long and arduous, which can not be solved by the owners having a meal and a cup of tea together. When I was young, I spent thousands of dollars eating and drinking at a time. To put it bluntly, printing materials, hiring lawyers, and litigation costs are not affordable for an owner. At the beginning, individual owners may bear the cost of everyone's maintenance right at their own expense. Once time goes on, they will feel at a loss. The owners spontaneously raise funds to protect their rights, and it is difficult for other owners to trust and rest assured about the use and supervision of funds and even whose account the funds are placed in.
The site problem seems irrelevant, but when the owners really organize, they will experience the dilemma of no activity site. Dozens and hundreds of homeowners, where will the meeting be held? In an owner's home, whether it is crowded is a big problem. For a meeting in a hotel, which hotel pays whom is another question. Therefore, owners often simply meet in the conference room of the property or developer to discuss how to fight with others under their noses. Or simply sit around the open space of the community to discuss. In case of rain and snow, the meeting will not be held for the first time. Let's go home and hide.
The third deficiency is that quite a few car owners have the psychology of hitchhiking. I attend meetings and pay attention to everyone. Supposedly, this can also increase the momentum of the owners, but when it comes to contributing money, these people often dare not avoid it. When it is difficult to maintain peace and safeguard rights, they will look on coldly and break up when they encounter resistance. Not to mention disturbing the morale of the army, it is easy to be bought off and leaking the owner's action plan, which will lead to the failure of peacekeeping and rights protection. Therefore, we must oppose hitchhiking and enjoying success.
Lawyer Xu Rui introduced: What is the role of professional lawyers?
What is the key to safeguarding the rights of uncompleted residential flats? It is to seize the time to get the owner's share before the developer's real estate and other assets have been carved up. Above, we talked about many shortcomings of the owner's spontaneous organization, among which the most critical point is poor organizational ability and slow action. Most owners lack professional experience in safeguarding the rights and interests of uncompleted residential flats and the ability to organize owners. After all, the probability of encountering an unfinished building twice in a lifetime is still quite small. Professional real estate lawyers, because of their rich experience in handling cases, can organize owners as quickly as possible and enter the rights protection procedure. On the other hand, the negotiation with the developer, the coordination of the developer's assets with the government, banks and construction parties, bringing a lawsuit to the court, and the execution of the later judgment require not only professional lawyers, but also a professional team of lawyers.
Li Xiaoning, the chief lawyer of Beijing Xu Rui Law Firm, has been active in the forefront of real estate litigation for more than ten years. Acting for more than ten class actions of owners of uncompleted residential flats in China. The classic cases are: leading a team to successfully recover the house payment for 56 owners of an uncompleted residential building in Zhejiang; After two years of multi-party coordination and consultation, a uncompleted residential area in Hebei was reorganized and resumed work, which was called a typical case of the owner's attorney coordinating the resumption of work by the local government.
Lawyer Li Xiaoning represented this class action case:
1. sanya 125 small property rights protection case;
2. Wuxi Jinge Commercial Plaza, dozens of households demolition, housing distribution disputes;
3. 56 cases of rights protection of uncompleted residential flats in Zhejiang;
4. Shanghai Brick Bridge Trade City 109 household dispute case;