For the sale of commercial housing under the pre-sale system, it is uncertain whether the developer can deliver the housing on time. If the developer is involved in a dispute, the project is suspended, the capital chain is broken, etc., one of the serious consequences is that the house is "unfinished". Whether it is an unfinished end caused by a broken capital chain, or a "unfinished end" caused by other disputes, illegal acts, etc., the legal subjects and legal relationships involved are complex. This article intends to preliminarily sort out the relevant subjects and disputes involved in the disposal of unfinished buildings.
First, the definition of unfinished building
"Unfinished building" is not a legal concept. The “unfinished building” in the usual sense refers to the construction in progress that has actually been suspended or basically suspended due to various reasons and has lasted for a certain period of time, and the project has already exceeded the reasonable completion period. If the main body of the project has been completed, but the water, electricity and supporting facilities have not met the conditions of use and affect the normal use function, it also belongs to the scope of "unfinished buildings".
"Unfinished Building" can be a construction in progress that has obtained a construction project planning permit and a construction project construction permit, or a construction in progress that has not obtained the above-mentioned administrative license. According to the relevant provisions of Article 64 of the "Law of the People's Republic of China on Urban and Rural Planning", those who fail to obtain a construction project planning permit or fail to construct in accordance with the provisions of the construction project planning permit shall be ordered by the competent urban and rural planning department of the local people's government at or above the county level. Stop building. For illegal buildings, government functional departments often issue penalty notices or order demolition, and the discussion value is relatively limited. In view of this, the "unfinished buildings" in this article are limited to those under construction that have obtained a construction project planning permit but are actually in a suspended state. project.
2. The parties and common civil disputes
(1) The parties
1, the developer
The developer, also known as the construction unit and developer, refers to the party who is obliged to issue the project and pay the project payment in the construction contract relationship. The cause of the unfinished building has a direct causal relationship with the developer. The common unfinished building projects are mostly because the capital chain of the construction unit is broken.
2, contractors, subcontractors
Contractors mainly include general contractors, general construction contractors, etc. In the unfinished building project, the contractor cannot obtain the project payment or progress payment in full, and there is a situation where a large number of contractors advance the construction. Subcontractors belong to the broad sense of contractors. If the subcontract has a "back-to-back" clause, or the developer and general contractor are unable to pay the project cost, the subcontractor has the same risk.
3 Actual constructors and migrant workers first class. However, it should be noted that migrant workers who only provide labor services are not actual constructors, nor are the teams hired to engage in labor construction. In the unfinished building project, compared with the contractor, the actual construction workers and migrant workers have weaker anti-risk ability. Therefore, once the developer is unable to pay the project payment, it is more difficult to protect their rights and interests.
4, supplier
In many cases, construction projects have a material supply, that is, the construction unit purchases materials and equipment from suppliers.When the capital chain of the construction unit breaks, it is possible to default on a large amount of payment for the goods, causing losses to the suppliers.
5, buyers
In view of the pre-sale behavior in the real estate industry, once the real estate project is unfinished, it will have a great impact on the buyers; what's more, developers sell houses in violation of regulations, without obtaining the pre-sale certificate or even the land In the case of the right to use, the purchase price will start to be collected, and finally the project is unfinished, and there is a huge risk for the purchaser. For home buyers, judicial practice divides them into consumer home buyers and other home buyers. The purpose of increasing protection for consumer home buyers is to prevent home buyers from eventually being displaced and difficult to maintain.
6, demolition and resettlement object
The unfinished building project also has a typical situation involving demolition and resettlement projects. For example, in the renovation of old cities, there are many low-income people and the elderly who do not have the ability to purchase commercial housing. Once the demolition and resettlement project is unfinished, the resettled object lacks basic survival guarantee, and it is easy to cause mass incidents.
7, senior creditors
Preferred creditors may include several creditors mentioned above, such as consumer house buyers, construction parties with priority in payment of construction project prices, and financial institutions with mortgage rights.
8 Ordinary creditors
Ordinary creditors refer to creditors other than priority creditors, including but not limited to private loan creditors and other creditors with a creditor-debt relationship with the construction unit.
9, the acquirer or the transferee
The acquisition of the project by the acquirer, or the transfer of the project by the transferee with development capability, is conducive to revitalizing the project.
10 and relevant functional departments
The disposal process of unfinished buildings is relatively complicated, involving government departments and authorities such as land, planning, housing management, real estate, fire protection, taxation, etc.; in the case of seizure, mortgage, auction or bankruptcy, there are also courts, etc. The judiciary is involved.
（二）常见民事纠纷
烂尾楼相关的常见纠纷包括但不限于：
1、建设工程施工合同纠纷
2、供货相关的合同纠纷
3、商品房买卖合同纠纷
4、借贷纠纷（民间借贷、金融Loans)
5, enforcement objection disputes
6, bankruptcy-related disputes
In addition, unfinished buildings often encounter criminal cases such as illegal fundraising by developers, and may involve criminal seizures. There are still many problems related to taxation and administrative penalties in the disposal process of unfinished buildings.
3. Common paths for disposal of unfinished buildings
(1) Legislative solutions to
There are many factors that cause unfinished buildings. In some cases, the ineffective supervision of administrative functional departments indirectly leads to risk out of control.Through legislation, an effective supervision mechanism can be formed to supervise the project beforehand and in the process to prevent the risk of unfinished business. For example, the Zhengzhou Municipal People's Congress initiated the legislative process to revise the "Regulations on the Administration of Land and Space Planning of Zhengzhou City" to regulate illegal construction and illegal construction. Supervision of public officials in administrative functions such as transportation. In addition, for unfinished buildings that have been formed, legal and regulatory guarantees can be provided for revitalizing projects through legislative procedures. For example, Shenzhen, Zhuhai and other places have promulgated relevant local regulations or policies to provide policy support to the acquirer.
(2) Administrative solution
The disposal of unfinished buildings may involve multiple government departments such as land, planning, housing management, real estate, fire protection, taxation, etc., with the local government as the coordinator or leader, or in the form of government documents for specific The formation of project minutes is conducive to promoting the resolution of unfinished building projects. For "unfinished building" projects that cannot be certified due to non-standard procedures in the early stage, imperfect supporting facilities, etc., self-rescue projects of the owners, etc., a case-by-case discussion method can also be adopted to solve the problem through administrative means.
(3) Acquisition or transfer of
The acquisition or transfer of
can effectively revitalize the unfinished building. In practice, there are many precedents in which the acquirer or the transferee has renovated the unfinished building and obtained a lot of commercial value.
(4) Bankruptcy disposal
The developer of the unfinished building project, if it meets the bankruptcy conditions, may initiate bankruptcy proceedings, and auction, sell or otherwise dispose of the unfinished building as the property of the bankrupt enterprise.
(5) Self-rescue of the owners
Some houses are basically ready for completion, and the owners move into undelivered "unfinished" rooms, but the lack of supporting infrastructure makes living difficult; Failing to continue the construction, the owner spontaneously raised funds for subsequent construction. There is no unified model for the owner's self-rescue method, and most of them are helpless.
Fourth, several major legal issues
(1) Validity of a house purchase contract The pre-sale contract of commercial housing concluded with the buyer shall be deemed invalid, but if the pre-sale permit certificate for commercial housing is obtained before the lawsuit is filed, it can be deemed valid." If the developer fundamentally breaches the contract and the purpose of the contract cannot be achieved, it can claim to be rescinded; otherwise, it can claim to be invalid.
(2) Debt settlement of unfinished buildings
Unfinished building developers have no financial solvency, so when there is no other property available for payment, both parties can consider "payment of debts with houses". However, it should be noted in actual operation that 's debt-for-household is essentially a house sale contract relationship, and the conditions for house sale must be met, otherwise the contract may be invalid.
The unfinished building can also be auctioned and sold, but because it is an unfinished "half-laminated" project and may have been sold to the buyer, the bidder should check on the spot to understand the project's online signature and sale. Investigate the project and fully understand the tax-related, fines, planning, etc. of the project.
In addition, For developers who are seriously insolvent, they may apply for bankruptcy by themselves or by creditors. Realization of bankruptcy property shall be conducted by auction. If the auction is not held or the auction fails, it may also be distributed in kind or sold at a price. If the creditor finds that it meets the bankruptcy conditions during the execution process, it may propose a "transition to bankruptcy".
(3) Sequence of repayment
When financing, construction units often use land and construction-in-progress mortgages for financing. When the project involves the subject of a large amount of litigation, the involved project is also very likely to be seized. Generally speaking, the order of rights protection is: the priority of the consumer and the buyer of the house> the priority of the contractor's right to repay the project price> the right of mortgage> the ordinary creditor's right.
If the purchaser uses self-help to complete the construction of the project, can the implementation be excluded? The cases retrieved so far are based on the "Supreme People's Court Regulations on Several Issues Concerning the Handling of Enforcement Objection and Reconsideration Cases by People's Courts", but there is no unified opinion.
If the real estate of the consumer house buyer is seized or mortgaged, he may file an enforcement objection and an execution objection by an outsider. According to the relevant cases of the Supreme People's Court, the priority right of consumer home buyers can reach the right to return the purchase price. Therefore, in the unfinished building project, the home buyer can also claim priority to return the purchase price.
According to the latest judicial interpretation of construction projects, the period for exercising the contractor's priority in compensation for the project price has been extended to a maximum of 18 months.
In bankruptcy proceedings, the order of repayment of some debts is not clearly stipulated, such as the order of repayment of common debts and the priority of payment, and the priority of consumers and buyers. The so-called "benefit debt" refers to the debt borne in the bankruptcy procedure for the common interests of all creditors and the smooth progress of the bankruptcy procedure. According to the relevant provisions of the Bankruptcy Law, the repayment of common debts has priority over employee claims, social security and tax claims, and ordinary claims, etc., but the order of repayment of common debts and priority in repayment is not specified. There is a view that, based on the interests of all creditors, common debts should be paid in preference to other debts.
(4) Quality problems of the continuation project
For unfinished buildings that have been auctioned or acquired through mergers and acquisitions, generally they can be rebuilt or rebuilt. The so-called reconstruction means tearing down and rebuilding, and destroying the original construction in progress. In areas with fierce competition for land acquisition, the acquisition of unfinished buildings can be used as a convenient way to acquire land, without involving the quality risk of continued construction for the time being. For the continued construction, in view of the fact that the "Half-Lazi" project has not passed the completion acceptance, and the construction in progress in the unfinished process generally lacks protection measures, in order to avoid potential quality hazards, the current situation of the construction in progress and the construction plan for continued construction should be dealt with. Carry out a full assessment, and make more detailed agreements on the risks, quality responsibilities, warranty obligations, etc. involved in the assessment plan when signing the construction contract.
The author of this article: Li Bing, Deputy Director of Wenfeng Construction Engineering Business Department, Member of Construction Engineering Committee of Henan Lawyers Association, Master of Laws from Zhengzhou University.
Attorney Li Bing specializes in construction legal affairs, real estate legal affairs, civil and commercial legal consulting business, various civil and commercial litigation business, and corporate legal business.
During her practice, Mr. Li Bing worked for Henan Wujian Construction Group Co., Ltd., Henan Zhongjian Real Estate Co., Ltd., Zhengzhou Tiandi New Town Industrial Co., Ltd., Henan Jiayi Real Estate Group Co., Ltd., Henan Wujian Real Estate Co., Ltd., and Zhengzhou Airport Area Hangcheng Real Estate Co., Ltd. , Henan Hanhai Real Estate Co., Ltd., Henan Zhouhai Real Estate Co., Ltd., etc. to provide legal advisory services.
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