15 real estate sales contracts demonstration text understanding and application of _ the real estate class papers
2000 On September 13, the Ministry of Construction and the State Administration for Industry and Commerce jointly issued Model Contracts The implementation of the model text, protect the legitimate rights and interests of the parties, to avoid contract missing paragraph is untrue, inaccurate, there obviously unfair and illegal terms and party; reduce real estate sales contracts disputes, contract disputes solve; mobilize consumers purchase enthusiasm to promote housing consumption, played an active role in stimulating economic growth.
the other hand, due to the model text The department in charge of the local real estate development consulting, and no request to the Ministry of Construction and the State Administration for Industry and explain, the formation of a dispute in the course of implementation, resulting in losses to the parties. Model text
one, the provisions of Article 15 of the model text content
model text of the provisions of Article 15: shall be delivered in the real estate after ______ days, will apply for the registration of ownership needs reported that the information provided by the seller of property rights registration authority for the record. within the prescribed period, the buyer can not obtain real estate ownership certificate as a result of the seller's responsibility the two sides agreed to press the the following ______ item processing:
1. buyer to check-out, the seller and the buyer from the date of the check-out requirements ______ days the buyer has pay Fangjiakuan refunded to the buyer the the press paid Fangjiakuan ______% compensation vendee loss.
2. buyer does not check out, the seller paid Fangjiakuan _ _____% pay liquidated damages to the buyer
. 3 _________________________________________________
two 15 the focus of controversy:
1, which provides that the the ownership registration materials provided by the seller refers only to housing ownership registration materials, or both, including state-owned land use rights registration materials?
2, corresponding with the above focus, the seller is only to the real estate administration authority to provide material, or material to the land and resources departments at the same time?
3, which provides that the real estate ownership certificate refers only to housing ownership certificates, or both, including state-owned land use rights certificate?
controversial core range of real estate ownership.
three different interpretation and understanding of the provisions of Article 15 of the model text
(a) the interpretation of the real estate development authority
a land property management Board believes that the provisions of Article 15 of the model text of real estate ownership certificate . A City's management status quo is housing ownership registration by the property management department responsible for state-owned land ownership registration by the land management department is responsible for the failure to implement the Housing and Land Ownership unity. A City Real Estate Board, executive producer of The state-owned land registration of ownership of land management department is responsible for.
(b) of the reply of the Ministry of Construction
The court of judicial interpretation, general should understand developers will handle real estate license information to pay the registration authority within 90 days for the record. No practical significance for land use permits segmentation, does not constitute violations of the substantive rights of the purchaser, and now there are 60 or 70% of the city does not need household division of land.
(c) the interpretation of the land and resources management departments
Apply for state-owned land use right certificates must be state-owned land use right transfer contract signed.
(d) of the Commercial Arbitration authorities explained
commercial arbitration authority on the interpretation of the article for the real estate ownership certificate includes both housing ownership certificates, also including the state-owned land use rights certificates. Apply for the change of ownership and registration, the seller's obligation is to assist obligations.
(e) the seller's understanding
seller understand basic explanation and solution of the reply of the Ministry of Construction and real estate development authorities.
(f) the buyer understood
which provides real estate relative certificate includes both housing ownership certificates, including the state-owned land use rights certificates; seller provides a corresponding the archival materials include both home ownership registration of archival materials,Jordan Spizike, including state-owned land use right registration record material; seller both filing materials should be provided to the real estate management authorities, and land and resources management authorities should provide the archival materials.
four Comment on the different interpretations and understanding
(a) Interpretations of the real estate development authority
the basis of the interpretation of the real estate development authority But the purpose of the consultation in order to reach an agreement between the parties on the terms of the contract and professional terminology views Advisory issued by the party to explain conclusions,nike free sko, contract counterparties do not agree, its interpretation of the conclusion does not have the force of law. This is one of the reasons. Second, the model text to develop the basis for contract law, the provisions of the Real Estate Administration Law and other laws and regulations. Registration of real estate management, Real Estate Administration Law Chapter 59 stipulates that the state implement the land use rights and building ownership registration certification system. The provisions of Article 60, paragraph 3, when real estate is transferred or changed, should be at or above the county level People's Government of the property management department for real estate change of registration application for the land use rights to the land administration department of the people's government at the same level and with the changed housing ownership certificates change of registration, verification by the land administration department of the people's government at the corresponding level, to be replaced by the people's government at the same level or change of land use rights certificates. The provisions of Article 25 of the People's Republic of China town grant of state-owned land use rights and the transfer of the Provisional Regulations Land use rights and buildings on the ground, other the appendage ownership split transfer should be approved by the city or county government land management sector and real estate management department and handled in accordance with the provisions of the registrar. This shows that in China's real estate ownership includes both housing ownership, it also includes the ownership of state-owned land use rights. Third, the application of the provisions of Article 15 of the model text of real estate ownership certificate ). Not apply to the failure to implement the Housing, Land Property Rights unity is the wrong interpretation of section 62 of the Real Estate Administration Law. 62 clearly stipulates that the local people's governments at or above the county level people's governments of provinces, autonomous regions, municipalities directly under the Central Government, by a department in charge of real estate management, land management, production, presented a unified real estate title deed, in accordance with the provisions of this Law sixtieth stipulate to confirm and change of ownership and occupied by the houses within the state-owned land use rights in housing, respectively, the real estate certificate. State Land Administration = Article 5, paragraph 2, place,Ralph Lauren Danmark, according to the provisions of Article 62 of the Real Estate Administration Law, land, real estate certificate viable one, but the Measures for the Registration and certificate format and the contents of the relevant land use rights must comply with the laws of the land management regulations and technical specifications requirements. Land, estate one certificate for land content and format must be reported to the State Bureau of Land Management for approval. Ministry of Construction notification = handle the the transaction formalities and apply for registration of change, then apply for the land use rights to the land administration department of the people's government at the same level with the changed housing ownership certificates for registration of change, do not follow the prescribed procedures for its real estate transfer or change shall be null and void. Room, and property rights-one system is a special form of the Housing Property Rights discrete form, in essence, as under the management authority of the Real Estate Administration Law, real estate management authorities and land and resources authorities are responsible for, and management of housing ownership ownership and the ownership of state-owned land use rights management, housing, land property rights-one is no exception. Therefore, you can not come to the provisions of Article 15 of the model text
(b) Comment on the reply of the Ministry of Construction
replythe Ministry of Construction in accordance with the provisions of Article 7 of the model text description, that the terms of the contract by the Ministry of Construction and the State Industry and Commerce Administrative General Administration is responsible for the interpretation. His reply to a combination of judicial interpretation of the Supreme People's Court. The judicial interpretation that the interpretation of the case law applicable to a number of issues on the trial of the real estate sales contracts disputes. One of the interpretation of the provisions, the interpretation of the alleged real estate sales contracts, real estate development companies (hereinafter collectively referred to as the seller) have not yet been completed or sales of houses have been completed to the community and transfer ownership of a house buyer bought by people pay the price for it. Article 18, paragraph 1, the buyer is unable to obtain housing ownership certificates following the expiration of the period within which, unless the parties have a special convention, due to the seller, the seller shall be liable for breach. The provisions of Article 19, the real estate sale contract or the Regulations on the Administration of the urban real estate development and management for more than one year after the expiry of the provisions of Article 33 apply for registration of housing ownership period, due to the seller, the buyer can not apply for housing registration of ownership,Nike Free, the buyer requests to cancel the contract and compensation for the losses, should be supported. Seen in this light, it is explained that the the just adjust housing sales and the transfer of ownership, without adjustment of the transfer and the transfer of the right to use state-owned land use rights. But can not be based on the judicial interpretation of real estate ownership does not include the state-owned land use right of the conclusions. Therefore, based on inadequate reply of the Ministry of Construction. This is one of the reasons. Second, in practice, there are 60 or 70% of the city does not need to household division reason there is a problem of land, and thus infer the country, there are three, or 40 percent of the city need to land divided households split. Are% or 40% of the city land splitting split no sense? In addition, state-owned land use rights registration of change is the clear provisions of the laws and administrative regulations, can not be based on the implementation of laws and administrative regulations are unfavorable, no meaningful conclusions drawn laws and regulations. Third, the answer is suspected of favoritism real estate development enterprises. According to the provisions of section 9 of the Regulations on the Administration of the urban real estate development and management, real estate development authorities should be based on the assets of the real estate development companies, professional and technical personnel, and development of operating results, the filing of real estate development enterprises approved level of qualification. Real estate development enterprises shall, in accordance with the approved level of qualification, undertake real estate development projects. Department of the Ministry of Construction as a real estate development enterprise management, the reply to the views of the real estate development enterprises very favorable objective tendency of favoritism.
(c) of land and resources management authorities interpret Commentary
explanationland and resource management authorities is undoubtedly correct. But not comprehensive. Because the change of registration for land use rights requires not only the contract but also provides other related legal documents.
(d) Analysis of the Commercial Arbitration authorities interpret
should be said that commercial arbitration organs interpretation, especially in the section for the record, according to the 33 after the sentence and real estate sales management approach the article data loaded in Article 34, paragraph 3, of
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