Property buyers can’t get the real estate license because of the developer’s illegal construction. Expert： You can cancel the contract and return the house.
Outpatient service problem: developers illegally build houses, which leads to property buyers not getting real estate licenses. How to deal with it?
Outpatient specialist:
Ma Lianzhen, Associate Professor of South China Normal University
Wang Ping, Procurator of Panlong District Procuratorate, Kunming, Yunnan
Expert opinion:
◇ According to the relevant regulations, an application must be made to the relevant departments before the floor is stamped, and it can only be stamped after approval.
◇ Illegal building does not necessarily mean that you can’t get the real estate license. If the developer changes the floor area ratio without authorization, you can readjust the floor area ratio if you want to pass the acceptance.
◇ Disputes arising from developers illegally adding floors or building planned green spaces belong to contract disputes.
The relevant government law enforcement departments should strengthen supervision, standardize the market behavior of real estate development enterprises, and cultivate a healthy and standardized commercial housing market.
Recently, Ms. Liu, a resident of a residential area in Anhui Province, told reporters that the commercial house she bought has been paid and moved in, but so far she can’t get the real estate license, and the developer always replies that it is being processed. When buying a house, the developer has complete pre-sale procedures. Who knows that the house can’t get the real estate license when it is bought? What causes this result? How should buyers protect their rights? Our reporter interviewed Ma Lianzhen, associate professor of South China Normal University, and Wang Ping, procurator of Panlong District Procuratorate in Kunming, Yunnan Province.
Why do developers illegally build houses?
Compared with the sales plan of the community, Ms. Liu found that a small high-rise building stood impressively in the part originally planned as green space; The original planning of several buildings have been stamped with the floor. Ms. Liu told reporters that it was the developers who illegally built houses that caused them to get the real estate license.
The reporter learned that this phenomenon is not uncommon. According to Wenzhou Metropolis Daily, a residential area in Rui ‘an City, Zhejiang Province failed to pass the project completion acceptance for seven years, resulting in more than 800 suites unable to obtain real estate licenses. The relevant person in charge of the Planning and Construction Bureau of the Management Committee of Anyang Central City, Ruian City said that the green area has shrunk seriously. The biggest possibility is that the design unit passed the project approval to cooperate with the owner at that time, and the greening rate designed on the drawings reached the standard. In fact, it is difficult to reach the specified greening rate, and in the end, it is often necessary to compensate for the garden construction. This situation is more common in the construction of resettlement houses in Anyang. According to the Chutian Times, in Ezhou City, Hubei Province, there are also cases in which the developer illegally added floors, resulting in the project failing to pass the acceptance, and the buyers failed to get the real estate license for six years.
Why do you want to reduce the green space to build a house, or build a floor on the top floor of a building? Mr. He, the developer, told reporters that there are generally two situations. First, in order to meet the needs of more relocated households, we can only reduce green space and increase Gai Lou; Second, developers build an extra floor for their own convenience.
In this regard, Wang Ping believes that in order to pursue commercial interests, developers build floors or build planned green spaces into buildings, and increase the actual living area of the community. The consequences are that the living environment and living comfort of the houses purchased by property buyers become worse, and the value of the houses is relatively reduced. According to the relevant regulations, an application must be made to the relevant department before the floor is stamped, and it can only be stamped after it is approved. If it is illegal to build a house without authorization, the construction project will not pass the completion acceptance, and the property buyers will certainly not get the real estate license.
Ma Lianzhen said, "According to the Measures for the Management of Floor Area Ratio of Construction Land promulgated by the Ministry of Housing and Urban-Rural Development in 2012, after the completion of the house, the competent urban and rural planning department of the local government at or above the county level should strictly examine whether the construction project meets the floor area ratio requirements when verifying the construction project. Without verification or verification does not meet the requirements of the volume rate, the construction unit shall not organize the completion acceptance. Obviously, these communities that do not meet the prescribed greening rate do not meet the requirements of the floor area ratio, so it is impossible to obtain the "Construction Project Completion Record Form", which will inevitably affect the property buyers to apply for real estate licenses. "
"The so-called plot ratio refers to the ratio of the total construction area to the construction land area in a certain plot." Ma Lianzhen said that for developers, the floor area ratio determines the proportion of land cost in housing; For residents, the floor area ratio is directly related to the comfort of living. The lower the floor area ratio, the higher the living comfort, and vice versa. Generally, if the floor area ratio is low, the green space ratio will be higher and the building density will be lower. The less area developers can use to recover funds, the more comfortable the residents will be. Therefore, the ratio of floor area ratio and green space ratio determines whether developers design a community from the perspective of people’s living needs or from the perspective of purely making money.
Must I not get the real estate license if I build a house illegally?
"Building a house illegally does not mean that you will not get a real estate license." Ma Lianzhen said, "In the case that developers change the floor area ratio without authorization, if they want to pass the acceptance, they can readjust the floor area ratio."
Wang Ping explained that the developer can pay the land transfer fee or accept a fine in accordance with the provisions of the Urban and Rural Planning Law, and then re-sign the state-owned land transfer contract with the relevant departments. After regaining the right to use the state-owned construction land after adjusting the floor area ratio, apply for the "Construction Project Planning Permit" for adding floors or building the planned green space, which will also enable buyers to get the real estate license.
However, it should be noted that the situation of paying the land transfer fee and adjusting the floor area ratio belongs to the situation that measures can be taken to adjust. If the developer illegally covers the floor or builds the planned green space into a building, or it is impossible to obtain the construction project planning permit for various reasons, or fails to carry out the construction in accordance with the provisions of the construction project planning permit, and it is confirmed to be an illegal building, it should be demolished according to the regulations.
Wang Ping believes that administrative punishment cannot exempt developers from civil liability for breach of contract. Most of the existing commercial housing sales contracts are standard contracts, and the contents of residential planning, community planning and liability for breach of contract in the commercial housing sales contract signed by buyers and developers are generally not stipulated in the contract. However, once the two sides signed the "Commercial Housing Sales Contract", it means that property buyers and developers have determined the corresponding rights and obligations. If the property buyers can’t get the real estate license because of the developer’s reasons, the developer’s behavior should be considered as a violation of the Commercial Housing Sales Contract. In addition, at the beginning of selling the house, the developer has explained and promised the houses and related facilities within the scope of the commercial housing development plan before signing the contract with the buyers, and it has a significant impact on the conclusion of the commercial housing sales contract and the determination of the housing price, which should be regarded as an offer. Even if the explanation and promise are not included in the Commodity House Sales Contract, they should also be regarded as the contents of the contract. If the developer violates it, he shall bear the liability for breach of contract. Of course, if disputes arise, in practice, the burden of proof for this content is borne by the buyers.
How should buyers protect their rights?
What should I do if the property buyers can’t get the real estate license and even face the risk of being forcibly demolished because the developers build houses illegally?
Wang Ping said that for buyers, after the developer defaults, the buyers can choose the following rights protection methods: First, ask the developer to bear the liability for breach of contract and return the house after compensating for the losses; Second, the developer is required to bear the liability for breach of contract and continue to perform the contract after compensating for the losses. The responsibilities that developers should bear include liability for breach of contract and liability for compensation. Article 18 of the Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of Laws in the Trial of Disputes over Commercial Housing Contracts (hereinafter referred to as the Interpretation) stipulates: "If the buyer fails to obtain the certificate of ownership of the house at the expiration of the following time limit due to the seller’s reasons, the seller shall bear the liability for breach of contract unless otherwise agreed by the parties: (1) The time limit for handling the registration of ownership of the house as stipulated in the commercial housing sales contract; (two) the subject matter of the commercial housing sales contract is the unfinished house, 90 days from the date of delivery of the house; (3) If the subject matter of the commercial housing sales contract is a completed house, 90 days from the date of conclusion of the contract. " Accordingly, property buyers have the right to ask the developer to terminate the contract and compensate for the losses. According to the provisions of the contract law, if the contract has not been performed after dissolution, the performance shall be terminated; If it has been performed, according to the performance and the nature of the contract, the buyer may request restitution and take other remedial measures, and have the right to claim compensation for losses.
Ma Lianzhen said that Article 19 of the Interpretation stipulates: "If the time limit for registering the ownership of the house stipulated in the commercial housing sales contract or Article 33 of the Regulations on the Administration of Urban Real Estate Development and Operation expires more than one year, the buyer cannot register the ownership of the house due to the seller’s reasons, and the buyer requests to cancel the contract and compensate for the losses, it shall be supported." If the property buyer asks the developer to bear the liability for breach of contract, the developer should compensate in accordance with the contract; If there is no liquidated damages stipulated in the contract or the amount of loss is difficult to determine, it can be calculated according to the total amount of paid house purchase price and with reference to the standard for financial institutions to collect interest on overdue loans stipulated by the People’s Bank of China.
For buyers, it may not be the best choice to cancel the contract and return the house after check-in. Ms. Liu’s experience reminds buyers that before signing the Commercial Housing Sales Contract, they should agree with the developer on a high liquidated damages in the purchase contract to deter the developer, and at the same time, it can guarantee that the developer will be required to pay high compensation when it defaults.
How to strengthen supervision by relevant government departments
The reporter learned that some property buyers are petitioning everywhere because they can’t get the real estate license, and hope that the relevant government departments will intervene to resolve disputes as soon as possible. In this regard, Wang Ping said that the disputes arising from the developers illegally adding floors or building planned green spaces are contract disputes. A contract is legally binding only on the contracting parties, but not on the third party outside the contractual relationship. This is determined by the principle of relativity of contract stipulated by Chinese law, which reflects the idea of respecting the autonomy of the parties and the freedom of contract. Once the Commercial Housing Sales Contract is signed, it is regarded as the true intention of both the developer and the purchaser. The contractual relationship can only occur between the developer and the purchaser, and only one of the parties to the contract (the developer or the purchaser) can make a request or bring a lawsuit to the other party of the contract. Other units and individuals, including the government, have no right to make demands on the contract content or rights protection methods. From this perspective, the relevant government departments should not intervene and intervene in the real estate market in principle, nor should they intervene in the settlement of disputes over commercial housing sales contracts.
However, illegal buildings have repeatedly "flashed", which is not unrelated to the lack of supervision by relevant government departments. It is not a one-off event for a building or group of buildings to start construction. If the relevant departments are properly supervised during the construction process, the situation that property buyers can’t get the real estate license can be avoided. Ma Lianzhen said that China’s urban and rural planning law stipulates the supervision and inspection responsibilities of governments at or above the county level in Chapter V. Article 53 of the Law stipulates that the competent department of urban and rural planning of the government at or above the county level shall supervise and inspect the implementation of urban and rural planning, and have the right to take the following measures: (1) require relevant units and personnel to provide documents and materials related to supervision matters and make copies; (two) to require the relevant units and personnel to explain and explain the problems involved in the supervision matters, and to enter the site for investigation as needed; (three) to order the relevant units and personnel to stop violating the laws and regulations on urban and rural planning. Article 56 stipulates that if administrative punishment should be given in accordance with the provisions of this Law, but the competent department of urban and rural planning does not give administrative punishment, the competent department of urban and rural planning of the higher level government has the right to order it to make a decision on administrative punishment or suggest that the relevant government order it to give administrative punishment. Accordingly, relevant government departments should strengthen daily supervision and law enforcement. For illegal acts that challenge laws and regulations, we should not turn a blind eye. We should always carry out special clean-up and rectification of illegal and illegal housing. For unauthorized housing, building houses with less batches and more areas, we will be punished according to relevant regulations. Relevant departments can also establish a reward system for reporting to stimulate the enthusiasm of the masses to report.Ensure that the relevant government departments grasp the illegal building information at the first time, and publicly expose and deal with typical cases with bad influence, and forcibly dismantle them. At the same time, it is necessary to increase publicity on the construction site, strengthen the legal awareness of developers and workers, make them understand the seriousness of the law, and better restrain their behavior.
Wang Ping also believes that the relevant government departments should strengthen the dynamic supervision of real estate development enterprises, strengthen the supervision of the whole process of approving projects under construction, intensify the efforts to clean up illegal enterprises, promote real estate development enterprises to standardize market behavior, and cultivate a healthy and standardized commercial housing market.
