Qi Luyao: on the practice and legal issues of the developer's rescission of the contract to take back the house

发布时间: 2020-07-22 浏览次数:61
With a new round of warming up in the real estate market in the past two years, more and more investors are pouring in. In order to sell houses as soon as possible, developers take the initiative to provide guarantee for the buyers to bank loans. However, compared with the buyers who just need to buy houses, the buyers who buy houses as investment are more likely to have overdue repayment or even cut off supply due to external debt problems, so developers have to bear joint and several liability to the bank. At this time, developers want to cancel the contract to take back the house, but found that there are pre sealing and several waiting for pre sealing on the house. Then how can the developer take back the house at this time? What are the problems in the process of taking back the house? The author will share with you from three aspects: practical methods and difficulties analysis, key legal issues analysis, and suggestions for developers. 1、 Practical methods and difficulties① Termination of contractThe developer takes back the house first must cancel the house sale contract with the small owner. The rescission of a contract can be divided into two situations: consensual rescission and statutory rescission. In this case, it is very difficult to realize the consensual rescission. Developers can only request the court to confirm or order the termination of the contract according to the housing sales contract and legal provisions. However, as the buyer can not be contacted as the defendant, this kind of case can only be heard by public notice and default judgment. The notice of prosecution and the announcement of judgment will inevitably lead to the extension of the time limit for closing the case, and the execution of the house in other cases can not be hindered during the litigation period. Therefore, the number of waiting for pre sealing up on the house may continue to increase during the litigation period. This kind of situation, based on the current legal provisions, can not be avoided, developers can only get the effective judgment of the termination of the contract through litigation as soon as possible, and then claim the right to remove the restrictions on housing rights.② Release of pre seizureAfter getting the effective judgment to terminate the contract, the developer should apply for the cancellation of the pre sealing up and waiting for pre sealing one by one on the house. In practice, the difficulties of pre sealing up are mainly concentrated in two parts. First, there are pre sealing and multiple waiting for pre sealing on the house. These confiscations involve multiple cases and courts. Developers must apply one by one, which undoubtedly increases the difficulty of understanding the seal Second, even if the developer makes an application for unsealing, unless the original seal up applicant can actively apply for unsealing, otherwise, as the developer and the court, they still have to solve through the enforcement objection or even execution objection litigation procedure. In addition, for the pre sealed information that has expired but not renewed, the developer needs to apply to the real estate management department for revoking the pre sealed information The expired pre sealed information will still hinder the cancellation of the next online signature, which will further extend the time for the house to be unsealed. 2、 Analysis of key legal issues① Does the court have the right to pre seal up the future houses that have not obtained the house property certificateAccording to the provisions of Article 15 of the notice of the Supreme People's court, the Ministry of land and resources and the Ministry of construction on regulating the execution of the people's court according to law and assisting the implementation by the land and resources real estate management department, the people's court can also pre seal up the following houses: (1) the real estate development enterprise as the subject of enforcement has already handled commodities Houses with pre-sale license and not yet sold; (2) houses purchased by the person subjected to execution, which have been initially registered by the real estate development enterprise; (3) houses purchased by the person subjected to execution, which have gone through the registration and filing procedures for the pre-sale contract of commercial housing or the advance notice registration of commercial housing. The court has the right to pre seize the house property that has not been seized.② Effect and nature of pre seizureAccording to the provisions of Article 18 of the notice of the Supreme People's court, the Ministry of land and resources and the Ministry of construction on Several Issues concerning the standardization of the execution of the people's court and the assistance of the land, resources and real estate administration departments in accordance with the law, the effect of pre sealing up is equivalent to that of formal sealing up. If the people's court fails to go through the procedures for renewing the pre sealing up on the date of expiration of the pre sealing up period, the effect of the pre sealing up shall be terminated. It can be seen that the effect of pre sealing up is equal to that of formal sealing up. However, according to Article 26 of the provisions of the Supreme People's Court on Several Issues concerning objection to execution and reconsideration by the people's court, the people's court will not support the objection raised by an outsider in the execution of pecuniary creditor's rights on the basis of the effective legal document in a separate case made after the subject matter of execution has been sealed up, detained or frozen. So, after the developers terminate the contract, does it mean that they can't resist the prior pre seizure?This needs to be further analyzed from the nature of pre seizure, specific to the case, from the legal property rights, without registration does not take effect, although the buyer and the developer signed a housing sales contract, but it did not obtain the ownership of the house, before registration, its property rights are restricted, developers and purchasers rescind the contract, the owner of the house is still For developers, although the effect of pre sealing up is equivalent to formal sealing up, it is only to standardize the execution effect of pre sealing up, not to confirm that the target of pre sealing is formal real right. Without property right registration, the target of pre sealing can only be an expected right or creditor's right in real estate transaction, so the developer can terminate the contract Against the pre seizure of houses. 3、 Suggestions for developers;Although after a series of processes, such as the termination of the contract and the pre sealing up, the developer can finally cancel the online signature and take back the house, but the developer has to spend a long time and a lot of energy to avoid this situation in practice, so that the developer can separate from the transaction after selling the house When providing guarantee, the buyer is required to provide counter guarantee. In this way, when the buyer is overdue and the developer undertakes the joint and several liability, the developer can choose to take back the house or maintain the legitimate rights and interests through the guarantee provided by the buyer; second, try to make the buyer mortgage the house to the bank for loan, and the developer does not participate in the guarantee loan, and the subsequent buyer repays the loan No longer associated with developers.Although the loan guarantee provided by developers for house buyers can promote sales and speed up payment collection, the hidden legal risks can not be ignored. Developers should adjust their sales strategies according to the actual situation and their own risk tolerance, and pay attention to the prevention of legal risks in the process of housing sales, so as to achieve better economic benefits. The above contents are the summary of the author's practice. Please give your comments on the shortcomings.