Housing lease related laws

To see whether the house itself can be rented, it is necessary to discuss the situation that the lease contract is invalid and under what circumstances the lease contract is invalid. Article 52 A contract is null and void under any of the following circumstances: (1) One party concludes a contract by fraud or coercion, which harms the interests of the state; (2) Malicious collusion that harms the interests of the state, the collective or a third party; (3) Covering up illegal purposes in a legal form; (4) damaging the public interest; (5) Violating the mandatory provisions of laws and administrative regulations. The leased house itself violates the provisions of laws and regulations, which leads to the invalidation of the lease contract (see the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Laws in the Trial of Disputes over Urban Housing Lease Contracts): (1) A house that has not obtained a construction project planning permit or has not been built in accordance with the provisions of the construction project planning permit; (2) Temporary buildings built without approval or in accordance with the approved contents; The lease contract can be dissolved according to law. 1. Article 94 of the Contract Law "In any of the following circumstances, the parties may terminate the contract: (1) The purpose of the contract cannot be achieved due to force majeure; (two) before the expiration of the performance period, one party clearly stated or indicated by its own behavior that it would not perform the main debt; (three) one party delays the performance of the main debt and fails to perform it within a reasonable period after being urged; (4) One of the parties delays the performance of debts or commits other breach of contract, which makes it impossible to achieve the purpose of the contract; (5) Other circumstances stipulated by law. " According to Article 233 of the Contract Law, if the lease item endangers the safety or health of the lessee, even if the lessee knows that the quality of the lease item is unqualified when concluding the contract, the contract can still be terminated at any time. 2. Judicial Interpretation of the Supreme Court Article 8 According to Article 8 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Laws in the Trial of Disputes over Urban Housing Lease Contracts, if the lessee requests to terminate the contract due to one of the following circumstances, the people's court shall support it: (1) The leased house is sealed up by judicial organs or administrative organs according to law; (two) the ownership of the leased house is controversial; (three) the lease of housing violates the mandatory provisions of laws and administrative regulations on the conditions for the use of housing. The third situation includes, for example, unqualified fire control acceptance or unqualified fire control acceptance, unqualified completion acceptance or unqualified acceptance. Suggestion to the lessee: Under the above circumstances, it is suggested that the lessee should ask the lessor to provide the construction project planning permit, pre-sale permit, completion acceptance certificate, fire control acceptance certificate and house property right certificate before signing the lease contract. Second, whether the lessor has the right to rent the house is divided into the following two situations according to whether the lessor has the right to rent the house. 1. suggestion that the lessor is not the owner of the house and directly rents the house to the lessee: when signing the lease contract, the lessee should ask the lessor to show the power of attorney that the owner allows the person to rent the house. 2. If the lessor sublets the leased house, the lessee may sublet the leased property to a third party with the consent of the lessor. If the lessee sublets, the lease contract between the lessee and the lessor shall remain valid, and if a third party causes losses to the leased property, the lessee shall compensate for the losses. If the lessee sublets without the consent of the lessor, the lessor may terminate the contract. (Article 224 of the Contract Law) Reminder: According to Article 16 of the Interpretation of the Supreme Court on Several Issues Concerning the Specific Application of Laws in the Trial of Disputes over Urban Housing Lease Contracts: "If the lessor knows or should know that the lessee subleases, but fails to raise an objection within six months, and requests to terminate the contract or finds the sublease contract invalid on the grounds that the lessee does not agree, the people's court will not support it." Three. Is there a mortgage before renting the house? If there is a mortgage right before the house is leased, after the mortgage right is realized, the lease contract is not binding on the transferee (Paragraph 1 of Article 66 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of the Guarantee Law of People's Republic of China (PRC)). If the mortgagor fails to inform the lessee in writing that the mortgaged property has been mortgaged when leasing the mortgaged property, the mortgagor shall be liable for the losses caused to the lessee by leasing the mortgaged property; If the mortgagor has informed the lessee in writing that the property has been mortgaged, the lessee shall bear the losses caused by the realization of the mortgage right. (Paragraph 2 of Article 66 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of the Guarantee Law of People's Republic of China (PRC)). When the mortgagee disposes of the mortgaged house, it shall notify the lessee in writing in advance, and the lessee has the preemptive right. Four. The lease term shall not exceed twenty years; More than twenty years, the excess is invalid. Upon the expiration of the lease term, the parties may renew the lease contract, but the agreed lease term shall not exceed 20 years from the date of renewal (Article 2 14 of the Contract Law). When the leased house is a temporary building, if the lease term exceeds the service life of the temporary building, the excess part will be invalid. However, if the term of use is extended with the approval of the competent department before the end of the debate in the court of first instance, the people's court shall determine that the lease period within the extended term of use is valid (Article 3 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Disputes over Urban Housing Lease Contracts). V. Effectiveness of Letter of Intent A letter of intent may or may not constitute a lease contract. When the following conditions are met, the letter of intent can be regarded as a lease contract: the letter of intent is signed by both parties; B. The letter of intent shall be signed by both parties; C the lease content is determined to be feasible (such as the lease location, rent and start time specified in the letter of intent); And d letter of intent does not violate the law and social public interests. Suggestion to the lessee: If the lessee does not want the letter of intent to constitute a lease contract, it can be clearly stipulated in the letter of intent. Examples of terms are as follows: This letter of intent shall not be regarded as a lease contract. It is only a list of some terms that constitute the lease contract. Except for Article of the Letter of Intent, other terms are not binding on both parties. Only the lease contract formally signed by both parties constitutes a legally binding document for both parties. Filing the intransitive verb lease contract Within 30 days after the conclusion of the house lease contract, the parties to the house lease shall go through the registration and filing of the house lease at the construction (real estate) department of the people's government of the municipality directly under the central government, city or county where the leased house is located (Article 14 of the Measures for the Administration of Commercial Housing Lease). The people's court shall not support the request of the parties to confirm that the house lease contract is invalid on the grounds that they have not gone through the registration and filing in accordance with the provisions of laws and administrative regulations. However, if the parties fail to register the lease contract, the competent department of construction (real estate) of the people's government of the municipality directly under the central government, city or county shall order it to make corrections within a time limit; Individuals who fail to make corrections within the time limit shall be fined 1000 yuan; If the unit fails to make corrections within the time limit, it will be fined more than 1000 yuan and less than 10000 yuan (Article 23 of the Measures for the Administration of Commercial Housing Rental), but there will be some administrative penalties if it is not filed. Seven. Key clauses and traps in the lease contract to prevent rent and property management fees There are usually three ways to pay rent in commercial property leasing: a) fixed benchmark rent; B) Royalty (i.e. calculated as a percentage of the lessee's operating income); (c) Which is higher, the fixed benchmark rent or the royalty rent? Generally speaking, if the lease term is not very long, it will be within three years. In other words, it is less likely to increase the rent every year. However, if the rent is involved, that is to say, the lease term is relatively long, then the general lessor will require the annual rent to rise according to a certain proportion in the contract. It all depends on the actual situation of the negotiations between the two sides. Under normal circumstances, we can control it, that is, the floating rate adjusts the rent according to the annual growth rate of the price index. On the other hand, both parties can limit the scope of adjustment of property management fees and the number of annual adjustments in the contract, especially for the lessee. Moreover, the adjustment of the agreed property management fee applies to the whole building. Suggestion to the lessee: Both parties can limit the adjustment scope of the property management fee and the number of annual adjustments in the contract, and stipulate that the adjustment of the property management fee is applicable to the whole building. Maintenance obligation According to the contract law, the lessor has the maintenance obligation to the property, unless otherwise agreed by both parties. When the lease item needs to be repaired, the lessor shall repair it within a reasonable time required by the lessee. If the lessor fails to perform the maintenance obligation, the lessee can carry out the maintenance by himself, and the relevant expenses arising therefrom shall be borne by the lessor. Property management services According to the Property Law, owners can manage buildings and their ancillary facilities by themselves, or entrust property service enterprises or other managers to manage them. If the owner provides property management services by himself, according to the property management regulations, the owner shall obtain relevant qualifications before providing property management services. Usually, property management services include: 1, maintenance, conservation and management of the parts used by the property; 2. Operation, maintenance, maintenance and management of facilities and equipment used in the property; 3, property * * * with parts and related sites clean and sanitary, garbage collection, removal and rain, sewage pipe dredge; 4. Maintenance and management of public greening; 5. Vehicle parking management; 6, public order maintenance, security and other matters to assist in the management; 7. Decoration management services; 8. Property file management; 9. Customer service. At present, there are no laws, regulations or judicial interpretations in the whole country that clearly stipulate the legality and effectiveness of the measures to interrupt water and electricity supply in the lease contract, and there are few places that clearly stipulate this issue. However, the Beijing Higher People's Court made a clear reply to the measures of water and electricity cut-off, stipulating that the measures of water and electricity cut-off should be commensurate with the amount, proportion and fault degree of the lessee's unpaid rent, and if it exceeds the necessary limit, the lessee should bear the liability for breach of contract; In other places, the legitimacy of treating lessors with water and power cuts is more reflected in judicial decisions. As far as the current judicial practice is concerned, the court generally recognizes the effectiveness of the terms of water and power cuts in the lease contract and the lessor's measures to stop water and power cuts according to the agreement in the lease contract. In the case that the lease contract clearly stipulates the terms of water supply and power failure, the court generally finds that the measures taken by the lessor are in conformity with the contract, and the lessee shall pay the rent during the period of water supply and power failure. It should be noted that some judicial practices have certain restrictions on the extent to which the lessor takes measures to cut off water and electricity, that is, if the loss caused by the lessor's measures to cut off water and electricity exceeds the rent owed by the lessee, the court may require the lessor to bear the responsibility for the excess. If the two parties have not agreed on the terms of water and power cut in the lease contract, but the lessor takes measures to stop water and power cut when the lessee breaches the contract, the court will generally strictly examine this situation, mainly considering the fault of both parties and the impact of the lessor's measures to stop water and power cut on the lessee, which may reduce the unpaid rent of the lessee during the period of water and power cut. The current law allows the parties to stipulate the terms of liquidated damages in the lease contract, but it should be noted that according to the Supreme People's Court's Interpretation on the Application of the People's Republic of China (PRC) Contract Law (II), if the liquidated damages agreed by the parties exceed 30% of the losses caused, it can generally be regarded as "excessively higher than the losses caused" as stipulated in the second paragraph of Article 114 of the Contract Law. According to the Opinions of the Higher People's Court of Jiangsu Province on Several Issues Concerning the Trial of Disputes over Urban Housing Lease Contracts, if the housing lease contract is terminated due to the lessee's breach of contract, the lessor may require the lessee to compensate the rental loss during the idle period of the leased house, but the maximum period shall not exceed six months. If the lease contract is terminated due to the lessor's breach of contract, and the leased house is used for commercial purposes, the lessee may also require the lessor to compensate for its operating losses within a reasonable period, but the longest period shall not exceed six months. In the Notice of Shanghai Higher People's Court on Printing and Distributing Some Specific Opinions on the Trial of Civil Cases, it is considered that if the lessee unilaterally terminates the contract before the expiration of the lease term and the lessor requests the lessee to compensate for the remaining lease term, if the remaining lease term exceeds 3 months, the compensation amount shall be calculated and paid according to the rent of 3 months; If the remaining lease term is less than 3 months, the compensation amount shall be calculated and paid according to the rent of the remaining lease term. Suggestion to the lessee: It is suggested that the lessee should ensure that the liquidated damages proposed by the lessor are not too high when reviewing the breach clauses in the lease contract. Once the liquidated damages are too high, the lessee may request the court to reduce them appropriately. In addition, when the lessor terminates the contract in breach of contract, it is required to compensate the lessor for the loss of production and business suspension and the loss of relocation compensation, that is, the loss of decoration.

Legal objectivity:

Article 705 of the Civil Code: The lease term shall not exceed 20 years. More than twenty years, the excess is invalid. At the expiration of the lease term, the parties may renew the lease contract; However, the agreed lease term shall not exceed twenty years from the date of renewal.