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 如何在中国购买商品房（英文版） |
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wcl
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游客
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作者：游客 在 海归商务 发贴, 来自【海归网】 http://www.haiguinet.com
本文为高忠智先生著《投资中国：房地产法律实务指南》（英文版）第七章的内容
版权所有(高忠智、法律出版社) 翻版必究
This article is Chapter 7 of Invest in China: A Practical Guide to Real Estate Law, which is authored by Zhongzhi Gao, and was published by the Law Press China
Copyright@ Zhongzhi Gao and Law Press China All Rights Reserved
Purchase of Commercial Houses
Commercial houses refer to houses for residential use such as condominiums, townhouses and single houses as well as houses for business use such as office buildings. In China, a purchaser has three choices to purchase commercial houses. When houses are under construction, the purchaser can purchase pre-sold houses. When the construction of the houses is completed but no certificate of title to the houses has been issued, the purchaser can purchase the completed houses. When the certificate of title to the homeowner is issued, the house becomes second-hand.. The purchase of pre-sold houses and completed houses occurs between developers and purchasers while the purchase of second- hand houses is a deal between non-developer purchasers. Purchase of commercial houses generally refers to purchase of both pre-sold houses and completed houses.
It should be noted that most commercial houses in China are condominiums. Townhouses or single houses are also available but they are mostly located in suburban areas. Given that infrastructure is poorly constructed in China, purchasers are not encouraged to purchase townhouses or single houses.
Furthermore, foreign purchasers should be aware that most houses in this country are half products or unfinished products in the eyes of Europeans or Americans since the purchaser needs to paint the house, do flooring and install kitchens and restrooms.
Procedure of Purchase of Pre-sold Commercial Houses
Most foreigners and Chinese prefer to purchase pre-sold houses to completed houses or second-hand houses. This is because pre-sold houses in China have better quality and more reasonable indoor design structure. In terms of completed houses, it is often because they aren’t on a favorable floor or facing a good direction. For example, purchasers like to purchase higher floor units to have a good view and they dislike units facing north for lack of sufficient sunlight. Comparatively, because most second-hand houses were constructed in the planned economy era by state-owned enterprises and the government, the design of the houses is not so cozy for habitation and the complicated title to houses often constitutes an obstacle to further transactions.
In China, it is a process filled with risks and tricks on the part of purchasers to purchase pre-sold houses. To identify the risks and tricks and further avoid them, it is definitely necessary to have a big picture of the whole process of transaction of pre-sold houses.
Typically, on the side of purchaser, he/she has to undergo the following steps to finally become a homeowner.
(1) Reach the Letter of Intent to Purchase Commercial Houses
It is not an indispensable step for purchasers to sign an letter of intent to purchase commercial houses. In other words, purchasers can directly sign a contract for presale of commercial houses with vendors. However, at least in Beijing, most vendors choose to sign the intent letter with purchasers before signing a contract. Since it is binding on both the purchaser and vendor, never ignore the importance of an intent letter a purchaser has signed.
The core provisions of a contract for presale of commercial houses are included in the intent letter. More important, under the intent letter, the purchaser is required to pay the deposit with the vendor as security to sign a contract for presale of commercial houses. In fact, this is just an unfair provision to the purchaser, and it is against Chinese law. Under Chinese law, the deposit is a kind of secured interest and it is used to guarantee performance of duty of a master contract. If the party to pay the deposit breaches the master contract, the non-breaching party has the right to take it while if the party to receive the deposit breaches the contract, the breaching party should pay twice as much as a deposit to the non-breaching party. Since the master contract, i.e., the contract for presale of a commercial house has not yet been reached when the intent letter is signed, the deposit under the intent letter should be understood as the fund prepaid to purchase the house. Under Chinese law, the prepaid fund should either be used as part of payment of the contract price or returned to the purchaser if the contract is reached. If the contract is not ultimately reached, the prepaid fund should be either returned to the purchaser or used as damages for the breach.
In practice, it often happens that some vendors hold the prepaid fund as a deposit.
(2) Reach the Contract for Presale of Commercial Houses
In China, the contract for presale of commercial houses is often an adhesion contract and drafted by the vendor. Though the Ministry of Construction and local government, for example, Beijing, have issued model contracts, the vendor is not required to compulsorily follow them.
It is not surprising that the structure and provisions of an adhesion contract are biased against purchasers and favorable to vendors.
Though purchasers always complain of unfair adhesion contracts, they have to “take it or leave it” given that Chinese real estate is overheated and purchasers have no bargaining power to reach a fair deal with the vendors.
In practice, vendors often have a bizarre management structure to handle issues related to signing of the contract for presale of commercial houses. For example, as a typical operation, the sales sector on behalf of vendors signs intent letters with purchasers. According to intent letters, the purchaser is required to sign the contract for presale of commercial houses within a fixed period, e.g., generally 14 days in Beijing, after the intent letter is signed. If the purchaser did not sign the contract on the designated date, he/ she will lose some of whatever benefits vendors offer such as discounts, free flights or freedom from the property management fee for one year. Of course, the deposit will be taken by vendors too. Another sector, i.e., the contract sector, for the vendor is responsible for signing the contract for presale of commercial houses. If the purchaser tries to negotiate with the contract sector on the provisions of contract, he/she will be told that they are not authorized to modify the contract in any way and the purchaser has to talk to the sales sector. Then the sales sector will ask the purchaser to go back to the contract sector for the same reason.
(3) Filing the Contract for Presale of Commercial Houses for Record
Within 30 days after the contract for presale of commercial houses is executed, the vendor and purchaser are required to file the contract for presale of commercial houses as a record with the government in charge. Unless there is an agreement to the contrary, the recordation of a contract for presale of commercial houses is not the precondition that the contract took effect and the parties are not allowed to claim the contract unenforceable for the failure of recordation.
To file for recordation, different local governments require similar but different documents to be delivered. For example, in Beijing, the following documents are required to be delivered for recordation:
1. Four original copies of the Beijing Municipal Contract for Presale of Commercial Houses, which should be downloaded online and affixed with signature or seal；
2. The Original Affidavit of entering into Contract for Presale of Commercial Houses and Application Letter for Recordation, which should be downloaded online. If no mortgage is placed on commercial houses, the vendor can make the application ex parte. Otherwise, the vendor should make the application together with the purchaser；
3. A photocopy of the Business License of the vendor (but the original copy should be examined), the Power of Attorney by which the vendor is authorized to handle the recordation, and the photocopy of identification of agent (but the original copy should be examined)；
4. A photocopy of the State Land Use Certificate (but the original copy should be examined)；
5. If purchasers are foreigners (natural persons, legal persons or other organizations), the original copy of approval documents with respect to national safety should be delivered；
6. If a mortgage is placed on commercial houses, the original copy of mortgagee’s consent to presale should be delivered；
7. A photocopy of identification of the purchaser.
If it meets the requirement for recordation, the government agency in charge will affix the seal of “Filing for Recordation of Contract for Presale” on the contract for presale of commercial contracts.
(4) Delivery of Houses
Delivery of houses is of great importance to both vendors and purchasers since once the house is delivered, it is often agreed in the contract that all risks related to the house, including but not limited to destruction of and damage to the house, shifts to purchasers.
To deliver a house, it is often required that the following requirements should be met:
(1) The Form of Completion and Acceptance of Construction of Houses has been acquired；
(2) The Report of On-site Survey of Area of Commercial Houses has been acquired；
(3) If the commercial residential house is delivered, the Warranty of Quality of Residential House and the Instruction of Use of Residential House should be delivered.
(5) Recordation of Transfer
The recordation of transfer is the last step for purchasers to become homeowners. The transfer means that commercial houses are transferred from vendors to purchasers and purchasers acquire the Housing Ownership Certificate of his/her unit of houses. Under Chinese law, vendors must in the first place finish the initial recordation upon completion of construction and accordingly acquire the Housing Ownership Certificate of the whole property； then it is possible to pass the title to the house on to individual homeowners.
It is generally required that the recordation of transfer be finished within 90 days after the contract for presale of commercial houses is executed or the house is delivered unless there is an agreement to the contrary.
The purchaser can either conduct the recordation of transfer himself/herself or entrust the vendor or a third party to do the same. However, in practice, most purchasers entrust the vendor to conduct the recordation.
In practice, there is a lot of pending recordation with the government agencies in charge and it is required to finish the recordation of transfer within a fixed period； e.g., it is 20 days in Beijing, once the application for the recordation is accepted. Therefore the government agency in charge often advises the vendor to submit application as late as possible.
In Beijing, the following documents should be delivered to file for recordation of transfer:
(1) The original copy of the application letter for the recordation of housing ownership and of state land use rights；
(2) The original copy of individual or entity’s application for purchase of the house and individual or entity’s application for sale of the house；
(3) Three original copies and one duplicate of the Contract for Presale of Commercial Houses；
(4) The original copies of the Housing Ownership Certificate and State Land Use Certificate of the original owners；
(5) The original copy of the Survey Report for the Floor Area of House；
(6) The original copy of the survey establishing the borders of the real property；
(7) The original copy of the sketch map of ownership of the real property；
( If the vendor is a legal person, he should deliver the photocopies of his Business License and Certificate of Approval (which should have passed the annual inspection),. The document with respect to approval of purchase of houses issued by the superior department or the resolution of the board of directors on the purchase of houses should also be delivered. If the above documents are delivered by foreign legal persons, they should be notarized by a notary public located in the place where the legal person is incorporated and should be certified by the Chinese embassy or consulate；
(9) A photocopy of the applicant’s identification； the original copy of the power of attorney； a photocopy of the agent’s identification； if an agent is entrusted to proceed with the recordation, the original copy of the notarized power of attorney should be delivered； if the power of attorney is issued abroad, it should be notarized by a local notary public and should be certified by the Chinese embassy or consulate；
(10) If the real property is jointly owned, the agreement for joint ownership, which indicates the respective proportion of joint ownership, should be delivered； excepting if the agreement for joint ownership is executed on the site, it should be notarized and the original copy of it must be delivered；
(11) Other documents (e.g., receipt of deed tax).
Furthermore, all matters which are authorized to be handled by the agent should be itemized in detail in the power of attorney. An example of this is when the agent is authorized to handle the recordation of transfer and receive the certificates of title of real property.
Loans on Purchase of Commercial Houses
In China, most purchasers use loans from banks to purchase commercial houses and the banks generally require purchasers to use commercial houses as mortgaged property.
The term of the loan, the down payment and the total amount of the loan vary depending on the purpose of the commercial house used, who borrows the loans and the banks from which loans are borrowed.
As a general rule, if commercial houses are for residential use and they are purchased by domestic purchasers, the term of the loan should be less than 30 years, and purchasers should pay the down payment amounting to no less than 20% of the total price of the house. However, if the purchasers are foreigners, the term should be less than 10 years and the down payment should be no less than 50%.
In addition, the ratio of loans to the value of the commercial house should be less than 80%.
If individual purchasers borrow loans to finance the purchase of commercial houses for business use, the ratio of loans to the value of the commercial house should be less than 60%,the maximum term of the loan should not be more than 10 years, and the commercial houses should be completed (i.e, not under construction). .
Though it is required that purchasers directly reach the loan contract with banks, as a matter of practice, vendors generally on behalf of purchasers handle issues related to loans.
All purchasers are dissatisfied with issues related to the payment of attorney’s fees for securing loans from banks. Before signing a contract for loans, the purchaser is required to pay an attorney’s fee, which is determined based on the price of commercial houses. This is plainly unfair to purchasers since the attorney is retained by banks and the banks should pay the attorney’s fee. However, this is also a “take it or leave it” provision. The rationale for banks is that the attorney helps the purchaser examine whether he/she is qualified for borrowing loans.
(1) Procedure of Securing Loans
To borrow loans from banks, the following procedure should be complied with:
1. The purchaser applies to borrow loans from banks；
2. The banks should decide on whether the loan can be given within 3 weeks after accepting the application；
3. If the purchaser uses the commercial house as the mortgaged property, the purchaser should buy insurance over the commercial house before the contract for mortgage is executed and designate the bank as the beneficiary and insurance policy should be held by banks；
4. If the purchaser uses the commercial house as the mortgaged property, the written contract for mortgage should be executed and should be recorded with the government agency in charge before the loan is disbursed. Upon recordation, the contract for mortgage takes effect；
5. Reach a loan contract and the banks disburse loans according to the loan contract.
(2) Qualifications for Borrowing Loans
If the purchaser is an individual, he or she should meet the following requirements to secure loans:
1. Have an urban or township residence certificate or other certificate of residence；
2. Have a permanent job and stable income and ability to repay principals and interests of loans；
3. Proper security such as a mortgage or pledge；
4. Contract for presale of commercial houses； and
5. Other requirements. For example, the price of commercial houses should be approximately consistent with the value of the appraisal of commercial houses.
(3) Documents to Be Delivered for borrowing Loans
If the purchaser is an individual, he or she is generally required to deliver the following documents:
1. Document of identification；
2. Proof of income；
3. Intent letter or contract for presale of commercial houses；
4. The vendor’s proof of payment of the down payment；
5. Documents concerning mortgage such a as list of mortgaged property,\ and appraisal value of mortgaged property； and finally
6. Other documents.
Due Diligence on Pre-sold Commercial Houses
From the legal perspective, the aim of conducting due diligence is to determine whether a real estate project of real estate is consistent with the law . This is very important for purchasers trying to make the right investment. For example, if a purchaser has unluckily purchased a single house located on collective land, it will bevery hard for himor her to acquire title documents in the future. Even if they finally acquire the title document, it will be a time-consuming and costly process and he/she has to face many uncertainties.
To conduct due diligence with respect to pre-sold commercial houses, the purchaser should, among other things, focus on the following aspects:
(1) Five Certificates
The five certificates are the Permit of Planning for Land for Construction, the Permit of Planning for Building Construction , the State Land Use Certificate, the Permit of Commencement of Construction, and the Permit of Presale of Commercial Houses (“Five Certificates”).
Any vendors, who develop and pre-sell commercial houses, are required to acquire these five certificates from the government agencies in charge. In other words, if a vendor has acquired the five certificates with respect to a project, it generally means that the project is consistent with the law and basically, the purchaser can make the purchase.
To review the five certificates, the focus should be on whether they are still valid, whether they are issued by proper government agencies, whether the project is the one referred to the five certificates and whether the vendor is the developer mentioned in the five certificates.
Both the Permit of Planning for Land for Construction and the Permit of Planning for Building Construction are issued by the government agency in charge of urban planning and zoning. The former is the document indicating that the use of land is consistent with urban planning and the latter is the document indicating that the building construction is consistent with urban planning. Only after the Permit of Planning for Land for Construction is issued, can the developer apply for use of land with the government agency in charge. And only after the Permit of Planning for Building Construction is issued, can the developer apply for the Permit of Commencement of Construction.
The State Land Use Certificate is proof that the developer is the holder of the state land use rights. In it, the purchaser can find how long the term of the land use rights are , how the land user acquires land use rights and whether there is any mortgage placed on the land.
Under Chinese law, the term of land use rights for residential commercial houses is 70 years and the term for office buildings is 40 years. However, when the purchaser acquires land use rights, the actual term t is often shorter than the maximum term since land use rights may have been transferred several times and the construction of commercial houses may take several years.
The Permit of Commencement of Construction is issued by the government agency in charge of construction. Without it, it is illegal to commence construction of a project.
The Permit of Presale of Commercial Houses is the precondition of selling commercial houses under construction. Without it, developers are not permitted to sell commercial houses under construction in any form and furthermore they are not permitted to collect money from purchasers in any name. In practice, most developers finance projects by pre-selling commercial houses. Because it once happened that some developers ran away with the presale funds , the government has tightened control over presale of commercial houses.
To acquire the Permit of Presale of Commercial Houses, the following requirements should be met:
1. The land grant premium has been fully paid and the State Land Use Certificate has been issued；
2. The Permit of Planning for Building Construction and Permit of Commencement of Construction have been issued； and
3. Based on commercial houses subject to presale, the funds actually invested in the construction should be more than 25% of the total investment and the progress of construction monitored and the date of completion pre-determined.
Legally, if a vendor acquires the Permit of Presale of Commercial Houses with a of commercial house project, the project can be deemed as legal. However, never rely just on it since many local government agencies have illegally issued the Permit of Presale of Commercial Houses. Therefore, a better way is to check the five certificates together since they are issued by different government agencies.
Besides, it should be noted that though it is a requirement to fully pay land grant premiums for acquiring the Permit of Presale of Commercial Houses, the purchaser should not suppose that the land grant premium for the condominium unit he purchased has been fully paid. In practice, at least in Beijing, the Permit for Presale of Commercial Houses is issued based on a single condominium. There is a possibility that the developer has not yet paid the land grant premium for the condominium unit the purchaser purchased if there are several condominiums in the same land plot. Therefore, the purchaser must carefully and closely examine the Permit of Presale of Commercial Houses to determine whether the condominium is referred to in the permit.
Finally, when purchasers check the five certificates, the original copies must be checked since some vendors just forge photocopies of the original certificates.
(2) Mortgage
In China, developers often finance the development of real estate projects with loans from banks. Accordingly, land use rights or projects under construction are used as mortgaged property to secure repayment of loans. As mentioned previously , under Chinese law, the mortgagee’s consent must be acquired to file the record of the Contract for Presale of Commercial Houses and after a specific unit of commercial house is sold, the vendor is not allowed to place any mortgage on the unit. However, in practice, it often happens that the vendor illegally place a mortgage on the condominium after it has been pre-sold. Sometimes, vendors just intentionally conceal the facts regarding mortgages placed on commercial houses.
Another issue related to the mortgage is that some vendors owe construction costs to the contractor. Under Chinese law, if the commercial house is foreclosed on, the contractor is first in priority to receive payment from sale of the mortgaged property. So the purchaser should ascertain whether the vendor owes any debts to contractors.
(3) Infrastructure Facilities
The vendor often breaches its promise to the purchaser with respect to infrastructure facilities such as electricity, water, schools and traffic.
In China, the vendor should reach a contract with the government in charge or quasi-governmental companies regarding the supply of electricity and water. If a project is under construction, the vendor generally uses temporary electricity or industrial electricity. The term of temporary electricity is six months and after that the vendor should change the temporary electricity to civil electricity. Otherwise, the electricity supplier has the power to disconnect the supply of electricity though it seldom does so in practice. The temporary electricity is more expensive than civil electricity and it sometimes causes damage to home electrical appliances because of unstable voltage. However, the vendor is often reluctant to change temporary electricity to civil electricity since it has to incur tremendous costs. Therefore, the purchaser should determine whether the electricity currently in use is temporary.
For some projects in suburban areas, water is also an issue that requires attention . Because it is very expensive to connect new facilities to civil water supplies , some vendors just drill wells for drinking. So the purchaser should check whether the development is connected to civil water supply facilities . If it is not connected, the question of whether the quality of water in the well is fit for human use should be verified.
In sum, purchasers must be careful of issues related to infrastructure before carrying through the purchase.
(4) Online Examination
In China, many local governments require information related to the pre-sale of commercial houses to be available online in order to prevent the vendor’s deception of purchasers. In many cities, the vendor is required to apply for the Permit of Presale of Commercial Houses and sign the intent letter and the contract for presale of commercial houses online. Therefore either in Beijing or Shanghai, the purchaser can check online such information as the Permit of Presale of Commercial Houses and the progress of sale, etc. For example, in Beijing, you can check online the progress of sale of a specific unit of condominium, i.e., whether the unit has been sold.
Due Diligence on Second-hand Houses
In purchasing a second-hand house, it is very important to conduct a title search. The focus should be on whether there is any mortgage on the property and whether there are any joint owners. Besides, it is also very important to determine whether the structure of the house has been remodeled and whether the quality of air indoor is fit for habitation.
作者：游客 在 海归商务 发贴, 来自【海归网】 http://www.haiguinet.com
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 如何在中国购买商品房（英文版） -- wcl - (27058 Byte) 2005-11-18 周五, 10:57 (2281 reads)
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