Hot legal issues of real estate law

1. Policy and legal risks. Legal risks of shortening the construction period. Legal risk of unreasonable saving of development cost. Legal risks of illegal construction and sales. Legal risk of enterprise civil code.

China people believe in the concept of having a house and a home, and think that a house is the guarantee of life. Therefore, the real estate industry is a very important industry in China, and it is also a highly profitable industry. However, there will also be some legal problems and legal risks in the real estate industry. Then do you know what the legal problems of real estate companies are? Next, let's take a look at this article.

First, establish a legal risk prevention mechanism for real estate enterprises.

Although most real estate enterprises don't want all kinds of legal risks to happen, any real estate enterprise will face all kinds of legal risks as long as it operates in the real estate market, regardless of whether the enterprise realizes it or not. In order to effectively decompose and resist legal risks, it is necessary to establish a mechanism to improve behavioral norms, minimize the occurrence of legal risks, nip in the bud and put an end to legal risks.

(A) the legitimacy of real estate projects

This is the first legal problem to be solved in real estate projects. To be protected by law, the establishment and development of real estate projects must meet the following conditions: first, the right to use state-owned land obtained through transfer; Having the qualification of a real estate enterprise; 3. The project has been approved by the competent department. With the above conditions, it can be explained that the main body of real estate projects is legal and protected by law. Of course, in fact, just looking at the above aspects is far from enough. For example, real estate developers often change the original approved project purposes and project planning and design parameters without authorization. If unauthorized changes fail to pass the government's approval, real estate projects cannot pass the completion acceptance record, which means that houses cannot be sold to the outside world and property certificates cannot be handled. Even if it can get the final approval from the government, it will bear a huge fine. It should be noted here that not all planning and design parameters of the project can be changed. According to the laws of our country, some of them can be modified, and some of them belong to the national mandatory standards for housing construction. Once approved, it cannot be changed or adjusted. Of course, there are many other aspects of legitimacy that need to be examined.

The legal risk of real estate enterprises refers to the foreseeable or unpredictable possibility of violation of laws or regulations due to the behavior of real estate enterprises in the process of real estate development and operation. The effective measure for real estate enterprises to avoid legal risks is to establish a legal risk prevention mechanism, that is, to rely on the conscious, effective and systematic management mechanism of enterprises to fortify and control all stages of real estate development in order to avoid and eliminate all kinds of legal risks that may be encountered in the development and operation process.

Every link in the process of real estate development, that is, from land transfer in real estate development, establishment of project company, house demolition and municipal support to cooperative real estate development, construction, project transfer, house sale, lease, mortgage (i.e. real estate mortgage loan) and property management, needs to be guarded against omissions and mistakes.

(2) Main manifestations of legal risks:

1. The risks in the land transfer stage are mainly disputes caused by land transfer;

2. Disputes arising from co-construction and cooperation between two parties, three parties or even many parties during the establishment of the project company;

3, the stage of house demolition, mainly disputes with the demolition;

4. Disputes with construction contractors, disputes caused by planning, design and pool area, and legal risks caused by mortgage of pre-development projects;

5. In the stage of housing sales, there are mainly disputes over subscription and prepayment and mortgage repayment;

6. Disputes arising during the takeover acceptance and post-management after repossession mainly include disputes caused by non-compliance with repossession conditions, disputes caused by delayed handling of property rights certificates, disputes caused by housing quality problems, and disputes with construction company's project warranty.

Real estate development is a systematic project. In this process, it is very important to check every stage and every link in advance. We should solve the omissions and mistakes from the source and process, and realize the standardized operation of development behavior.

In the past, many development enterprises did not pay attention to the pre-control of legal risks, and legal disputes often occurred, and they didn't realize the seriousness of the problem until litigation. Now more and more real estate enterprises adopt the strategy of prevention in advance and control afterwards, and pay more attention to preventing legal risks in advance at the beginning of project intervention.

Second, the prevention of legal risks.

1. Establish a perfect project operation system.

The feasibility report of the project, the basis for the establishment of the company, all kinds of construction application procedures and work processes in the early stage should be standardized and formed into a system, in line with the provisions of relevant national laws, regulations and policies.

2. Establish a sound contract management system within the enterprise.

Contract is the most important carrier of enterprises' foreign economic exchanges. Facts have proved that a large number of legal disputes in real estate enterprises are related to the nonstandard, imprecise and even illegal contracts and related legal documents. To establish a perfect contract management system, we need to start from the following aspects:

(1) Improve the auditing mechanism of performance credit and ability of partners.

(2) Improve the contract pricing management mechanism and strictly implement the bidding and price evaluation system.

(3) Develop a perfect contract management system, so that contract management has rules to follow.

(4) Make various normative demonstration fixed contract texts for the company's own use.

(5) Organize the professional training of the company's management personnel and relevant handling personnel, and standardize the contract operation.

(6) Establish the supervision and guarantee mechanism and method of company contract tracking and payment.

3. Cultivate every member of the enterprise to have awareness of legal risk prevention.

Every member of the enterprise, especially the top management and core business personnel, must seriously study and study the laws, regulations and normative documents related to real estate development and operation, and always pay attention to and study new laws, regulations and normative documents.

4. Hire a professional law firm as a consulting unit with legal staff inside.

Through the mutual cooperation of internal and external legal affairs, problems can be solved quickly and efficiently. Both have their own emphases, and the law firm focuses on solving major problems, crisis handling and major lawsuits of enterprises; Corporate legal affairs focus on the daily legal affairs within the enterprise, and at the same time, as the working interface between the enterprise and the law firm, cooperate with the law firm to form a double-risk mechanism for internal and external legal affairs. We often encounter such a clause: if one party breaches the contract, it shall bear all the economic losses of the other party. Such an agreement is tantamount to no agreement. Once there is a breach of contract, it will inevitably fall into a lot of difficulties in proof and long litigation time. For another example, if there is no expected safeguard mechanism in the contract, then in the process of performance, you know that the other party is in breach of contract, but if you can't prove it conclusively, you still can't expect to protect your own interests. Here we only give a simple example. In fact, in many aspects, it is necessary for both parties to clearly stipulate in the contract to protect their investment interests. It should be said that investing in real estate is a high-risk and high-yield project. This kind of high risk depends largely on the legal risk, which is reflected in whether the contract terms are detailed and complete.

From this article, we can know that the legal problems of real estate companies mainly include the rationality and legality of real estate projects, internal management systems, legal risks and so on. Generally speaking, internal management is relatively easy to control. We can start with the quality of employees and hire people with specialized business to increase benefits for the company.