Any faster, developers will turn 70 years into 50 years. How do owners defend their rights?

-"Shrinking" of land use years, and "game" between buyers and developers.

Author: Hu Hailiang Zou Chaogui of Guangdong Shangdian Law Firm.

Since the housing reform, there has been a sword of Damocles hanging over the real estate market, that is, the service life of land use rights. Most property buyers don't realize that "land use right" and "house ownership" are two different concepts in China law, thinking that they can live permanently after buying a house and enjoy it from generation to generation through inheritance. The fact is that in our country's laws, real estate and real estate are independent, and the property rights enjoyed by buyers are only the ownership of houses and the right to use land for a certain period of time. After the expiration of the land use period, the house must be renewed before it can continue to be used. According to the Land Law, Property Law and other relevant laws and regulations, the service life of residential land is 70 years, that of commercial property is 40 years, and that of industrial and comprehensive property is 50 years. In reality, the service life of houses acquired by buyers is far from this standard.

Judging from the cases encountered in practice, there are several reasons why the service life of Huizhou folk houses has shrunk:

1, the developer "consumed" the land use years.

According to the law, the right to use residential land is calculated from the moment when the state transfers the land to the developer. The period from development to sales of developers is generally 1 ~ 3 years, and the "actual life" of housing property rights is shortened with the increase of developers' time to develop houses. There are also poorly sold weifang and vacant houses, especially some unfinished building renovation projects, whose effective residential land use rights are far from 70 years, and buyers are bound to face obvious "shrinking property rights". In addition, the local real estate market is deeply influenced by historical factors. In the 1990s, there was a real estate development boom in Huizhou. Many units and individuals frantically speculate on land and hoard a lot of land. Due to the limited development speed of the market and economy, the local real estate market did not prosper until 2006. In these years, a large number of land overdrawn in the early 1990s began to be developed, resulting in more projects with a land life of only 50 years.

2. The nature of land use reported by the developer leads to different land use years.

According to national regulations, the service life of commercial land is 40 years and that of residential land is 70 years. In real life, many residential projects are both commercial and residential. If the developer reports in the name of a commercial project, or changes the residential land originally applied for to commercial land, it is naturally impossible to reach 70 years. Property buyers often can't understand this, thinking that the country clearly stipulates that the residence is 70 years, why is mine only 40 years? Contradictions arise from this.

It is not uncommon for buyers and developers to go to court because of the shrinking land use years, such as Zhejiang Zhao v. Zhejiang Wanda Real Estate Co., Ltd., Guangzhou Cao v. Panyu District Green Pavilion Yayuan, Huizhou local land use years and so on. Buyers who are dissatisfied with looking for developers to discuss their views are also frequently reported in newspapers. But to be fair, it is unfair to simply push the responsibility to the developer. Many times, developers are troubled by factors such as insufficient bank funds, insufficient liquidity and incomplete relevant documents, and the whole development and sales cycle is beyond the control of a single group or individual; Whether it is necessary to pay after the expiration of the relevant land use rights, the national legislature has also adopted an evasive attitude, which makes developers worse for such lawsuits.

The author will briefly explain the laws and specific strategies related to the length of land use rights through relevant cases, hoping to attract more attention, and * * * should also deal with such problems.

Case 1 Different years of commercial residential land. Property buyers should be aware of the land use regulations.

Case: In September 2004, Zhao, a native of Taizhou, signed a commercial housing sales contract with Zhejiang Wanda Real Estate Co., Ltd. to purchase a set of commercial housing located at No.02, Hyatt Building, Jiaojiang District, Taizhou, with a total price of more than 800,000 yuan. Article 1 "Basis of Project Construction" of the contract records that the mode of state-owned land use right is "transfer", the contract number is Taikai Tuhe (20065438+0) No.35, and the land use period stipulated in the State-owned Land Use Right Transfer Contract is 40 years for commercial land, 70 years for residential land and 50 years for office land. Article 3 of the contract states that the land use is "commercial land". In April 2007, Zhao found that the land use time was registered for 40 years when handling the land certificate and real estate license. The service life has shrunk for 30 years, and Zhao feels cheated. After many unsuccessful negotiations with the developer, Zhao sued the court and asked Wanda to refund the overcharged 30-year land transfer fee of 3790 17 yuan.

The buyer thinks that the "project construction basis" on the purchase contract indicates that "the land use period is 70 years", but when handling the real estate license and other documents, it is found that the actual use period is 40 years, and the developer is fraudulent, so the 30-year land transfer fee should be refunded.

The developer thinks that the land use mode of the commercial housing sales contract signed by both parties in China is "transfer", and it is clear 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 foundation of the construction project, not a commitment clause made by the developer to the buyers that the service life of the state-owned land for commercial buildings is 70 years.

Lawyer's point of view: Lawyers Zou Chaogui and Hu Hailiang of Guangdong Shangdian Law Firm believe that the title of Article 1 of the contract is "Project Construction Basis", which is generally understood as the developer explaining the planned use and service life of the land to the buyer, but it is not clearly stated. Its specific meaning should be understood as: "The planned use is divided into commercial, residential and office land, with different uses and different service life, of which the longest service life is 70 years and the total service life is 70 years." According to relevant regulations, the service life of commercial land is clearly 40 years. In the case that the developer has clearly marked it as "commercial land" in Article 3 of the contract, it is impossible to confirm that the developer has promised the buyer that the service life of the commercial house is 70 years only by Article 1 of the contract. It is difficult for buyers to get the court's support for their claims.

The final judgment of the court: The court of second instance held that, on the one hand, the developer did not promise the plaintiff Zhao that the land service life of the commercial house was 70 years in the contract, and the title of Article 1 of the contract was "Project Construction Basis", which should be understood as the developer explaining the planned use and service life of the land to the buyers. On the other hand, as plaintiffs, we should also know that the longest term of land use right for commercial purposes should not exceed 40 years. Therefore, the plaintiff believed that the developer had breached the contract, and could not apply for the 70-year land use right certificate for the commercial house purchased by the plaintiff, and wanted the developer to return the overcharged 30-year land transfer fee. The claim lacks legal basis and cannot be supported. Judgment: uphold the original judgment and dismiss the prosecution.

Case 2: The years of land use rights have shrunk, and the developers compensate for the losses.

Case: 1999 1 1. /kloc-in October, Liu signed a house purchase contract with a developer and bought two storefronts in a building on Bayi Road in Taijiang District. Article 1 of this contract stipulates that the land use period is from1May 1999 17 to May 1969 17. On June 5438+065438+ 10, 2005, Liu received the land use certificate of the purchased house, and found that the land use termination date of the purchased house was May 65438+July 2039, which was 30 years less than the contract. If negotiation fails, both parties shall submit an arbitration application to the Municipal Arbitration Commission. The developer asked Liu to pay the final payment of 24,000 yuan, and Liu asked the developer to compensate 39,000 yuan.

Buyers believe: Liu believes that when developers sell houses, they limit the land use right of shops to 70 years as a "selling point", which raises the value of houses and deceives buyers. The contract is provided by the developer. The developer should be very aware of the mandatory requirement that the maximum service life of commercial land is 40 years, and consumers should not be required to know this requirement. When signing the commercial housing sales contract, since the developer promised that its service life would be 70 years, consumers have reason to believe. Therefore, developers have obvious faults in the purchase contract.

The developer believes that the 70-year land use period is aimed at the whole real estate land, not Liu's single storefront, so the description of 70 years in the contract is correct and there is no fraud.

Lawyer's 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 should bear the corresponding liability for breach of contract. The developer's practice infringes on the buyer's right to know and contract, and consumers can fully safeguard their rights and interests according to the Contract Law and the Consumer Protection Law. However, the price conversion standard for land use years has not yet been issued. In the absence of relevant laws and regulations, the most appropriate way for buyers is to sign a detailed contract.

Trial result of the Municipal Arbitration Commission: The Municipal Arbitration Commission held that the clause in the contract signed by Liu that "the planned land use is for commercial and residential purposes, and the land use period is from1May 1999 17 to May 1969 17" is invalid, because it conflicts with the Provisional Regulations on Assignment and Transfer of the Right to Use State-owned Land in Cities and Towns. Liu's storefront can only have 40 years of land use rights according to law, and it is unrealistic to expect 70 years of land use rights. Therefore, the economic loss claimed by Liu lacks factual and legal basis, and the arbitration tribunal will not adopt it. However, the developer provided an invalid contract, which made the buyers have unrealistic expectations and caused the developer's intention to buy a house. The fault of the developer has caused certain economic losses to the property buyers, so the developer should compensate Liu 5000 yuan.

Here are some cases. You can see what you are like and then see how to defend your rights.