Lawyer Li Jun: Male, graduated from Shandong University with a bachelor's degree in law.
Business expertise: civil and commercial legal affairs and litigation agency; real estate legal affairs; corporate legal affairs.
Corporate legal services: provide legal advice for the regulation and governance of the company’s management organization, protection of shareholders’ rights and interests, and the company’s capital operation, assist investors in planning and designing the basic framework for the establishment of the company, drafting and revising the company’s articles of association, etc.; employing personnel for companies and others The unit designs and drafts labor and personnel management systems, improves contract management systems, and reduces or eliminates the litigation risk of labor disputes and economic contract disputes.
Real estate legal services: Participate in the pre-demolition work of real estate development projects, follow the service throughout the process to prevent and resolve legal risks. Conduct risk prediction and review cooperation contracts for real estate cooperative development projects.
In terms of contract disputes: Relying on the past practical experience in the supply and marketing of state-owned enterprises, successfully using various methods such as negotiation, arbitration, and litigation to effectively recover the bad debts that have been deposited for many years for the reformed enterprises.
Home buyers pay real estate developers to purchase commercial housing through "mortgage" loans, which has become a common way of buying and selling commercial housing. The "mortgage" loan model solves the contradiction that buyers cannot buy expensive commercial houses because they have insufficient funds to buy houses, and greatly promotes people's enthusiasm for buying commercial houses. Banks are also happy with adult beauty and earn long-term profits steadily. Commercial housing development enterprises benefited from the "mortgage" loan method, and successfully sold commercial housing to achieve massive financial resources. However, the benefits and risks are at the same time. There is no relationship between the bank and the two parties of the commercial housing purchase contract. Since the transaction between the two parties requires the bank to take out real money to facilitate the transaction, the bank will naturally take the initiative in the activity of "mortgage" loans. He wants to use commercial houses purchased by buyers as collateral to guarantee his claims, and he also asks buyers to pay for insurance for the commercial houses, bringing in insurance companies to take on natural risks. Before the registration of commodity real estate rights and mortgage registration, the seller and developer of the commodity house sales contract shall bear the joint and several liability for the repayment of the loan from the buyer.
The most troublesome thing for developers is the joint guarantee responsibility for the purchaser before the mortgage registration. There are many reasons why buyers do not repay the loan. At this stage, the bank will not choose to cancel the loan contract with the buyer, but according to the guarantee agreement signed with the developer, from the developer with peace of mind. The funds deducted from the account are used to repay the loan for the buyer. If something happens to the buyer of a house, or give you a "evaporation", you can't get in touch anyway. The developer can only repay the house silently first, and it is not easy to exercise the right of recovery. This is because both parties have fulfilled the commercial housing sales contract, and the buyer did not breach the contract. The buyer violated the loan contract with the bank. The bank did not exercise the right to rescind and the developer had no basis to deal with the commercial housing to repay the loan.
How to prevent this kind of risk or reduce the risk? Negotiate with the bank not to bear the periodic guarantee responsibility? For the bank, there is no more suitable body to share the risk of the buyer's "mortgage" loan than the developer, so it is basically not possible. Then only find a way from the buyer's side.
First, the key is to complete the registration of the property rights and mortgages of commercial housing as soon as possible
When both parties sign the commercial housing sales contract or when the buyer pays the down payment, the maintenance fund and deed tax of the commercial housing, as well as the certificate processing fee and related documents required for the certificate are all collected, and the buyer handles various property rights certificates on behalf of the buyer, which not only reflects the development enterprise The enthusiasm for the service of the owners, and the ability to handle the property rights and mortgage registration of the commercial housing in their own hands. When performing this operation, don't forget that a reasonable period for license application is stipulated in the "Commercial Housing Sales Contract" and the buyer's liability for breach of contract shall be assumed when the buyer fails to cooperate in the registration of property rights and mortgages. Let buyers know that it is the obligation of both buyers and sellers to register the property rights of commodities, and that delays in performance will result in liquidated damages.
Second, in the "Commercial Housing Sales Contract" between the two parties, it is agreed to terminate the terms of the contract
In order to solve the problem of difficulty in claiming rights against the buyer after the developer assumes the joint guarantee liability due to the buyer's failure to repay the loan. The developer shall stipulate in the "Commercial Housing Sales Contract" signed with the purchaser: "During the period when the developer assumes the periodical guarantee responsibility for the purchaser, if the purchaser violates the loan contract and does not return the bank loan within the agreed period, the developer has the right to cancel the contract. The purchaser’s "Commercial Housing Sales Contract" shall be borne by the purchaser for all losses caused to the developer. This agreement also has the effect of urging the purchaser to perform the loan contract with the bank in accordance with the contract.
Third, let the buyer provide counter-guarantee
If the buyer believes that the buyer’s basic credit is not good, or the buyer’s intention to speculate in the property is obvious, and the risk of undertaking a phased guarantee is too high, the buyer can be allowed to provide a counter-guarantee during this period, and the buyer can provide property mortgage or stable income. The third party shall bear joint and several guarantee liabilities for it. If the bank deducts the developer’s funds due to the buyer’s default of repaying the loan, there will also be risk-bearing assets or the next company to provide the developer with support.
In the process of real estate development and operation, it is inevitable for developers to have transaction risks. As a real estate lawyer, I am willing to discuss with real estate development companies on management problems and try to avoid business risks.