(original title: why can't we control the illegal pre-sale of real estate with empty money when buying 'air house' through internal subscription?)
[the owner buys the air room] Ms. Gao in Kunming, Yunnan Province encountered trouble: in 2017, she subscribed for a 33 storey house in the mid level building in Longhu, but found that the recently capped building had only 31 floors. She has defended her rights for this nonexistent 'air room'. So far, she has no money and house. At present, there are more than 190 illegal pre-sale houses in this real estate, resulting in disputes.
Although the state has repeatedly banned the sale of houses in advance without obtaining the pre-sale license, the sale without approval continues despite repeated prohibitions, making it difficult for consumers to protect their rights and trapped in the situation of empty money and houses.
Six high-rise buildings in Longhu mid level building, located in Kunming Economic and Technological Development Zone, Yunnan, have been capped recently. It is understood that this project only got the pre-sale license in March this year, but it was sold in the name of internal group purchase as early as 2016.
Ms. Gao told the "Xinhua viewpoint" reporter that in January 2017, under the promotion of salesperson Shen, she signed a "group subscription agreement" and purchased three 33 storey A1 houses at an "internal price" of 3200 yuan per square meter. The house price was more than 350000 yuan, the down payment was 30%, and the delivery time was before June 30, 2018.
The delivery time has long passed, and the building has not been completed yet. Recently, Ms. Gao heard about the capping, so she hurried to confirm it. " I didn't expect that the three buildings I bought had only 31 floors in total, and there was no 33 floors at all! " She said angrily.
Yunnan Tianjun Real Estate Development Co., Ltd., the developer of the project, responded that the sales company selling to Ms. Gao was not authorized, the official seal used was a fake seal, and the house purchase money did not enter the account of Tianjun company, 'the previous subscription agreement is invalid, which has nothing to do with Tianjun company, please go through the judicial procedure.'
The reporter's investigation found that shortly after Ms. Gao and other owners paid the subscription money, the capital chain of Tianjun company was broken, resulting in the suspension of the project. In 2018, the creditors reorganized the company, replaced the legal representative and management, and the project was restarted. In this internal debt dispute between real estate enterprises, 196 illegal pre-sale houses have become 'castles in the air', and the purchase money has disappeared.
Illegal pre-sale has been the focus of governance repeatedly ordered by the state for many years, but some real estate companies still go their own way through internal subscription. In April 2016, Ms. Li in Xi'an internally subscribed for a real estate in yew manor and paid all the house money. Later, due to the sharp rise in house prices, the developer proposed that the subscription agreement was invalid on the grounds of procedural violations.
Why does the seemingly compliant subscription agreement 'fall down as soon as it is pushed'? Chen Ze, executive director of Yunnan Bingjian law firm, who has received consultation and agency on a number of commercial housing sales disputes, said that the internal subscription is not protected by law. Although the agreement has been signed, the house can be sold again or even used for mortgage due to the inability to carry out online signing and filing.
Can't control or punish?
As early as 2010, the Ministry of housing and urban rural development clearly stipulated that it was illegal to collect earnest money or house money from buyers in the name of internal subscription without obtaining the pre-sale license of commercial housing.
In June 2018, the Ministry of housing and urban rural development, together with six ministries and commissions, launched a special action to control the chaos in the real estate market in 30 cities across the country. The reporter learned from the real estate market supervision department of the Department of housing and urban rural development of Yunnan Province that a total of 2166 projects were inspected in Yunnan Province, 637 cases were handled, and there were not a few illegal sales.
In June 2019, the Department of housing and urban rural development of Yunnan Province issued the notice on continuously carrying out the rectification of chaos in the real estate market, investigating and dealing with 144 chaos, including non delivery of houses on schedule and illegal sales, accounting for 67%.
Why developers against the wind illegal pre-sale? Many industry insiders said that developers hope to speed up the return of funds. Over the years, the pre-sale license provisions have remained on paper for various reasons. Illegal pre-sale has instead become an industry 'practice'. As long as there is no problem, there is generally no one to ask.
The Longhu Banshan real estate selling 'air room' has been sold openly in the sales department for several months. Why is no one in charge?
Kunming Economic Development Zone housing and Urban Rural Development Bureau responded that Kunming housing and Urban Rural Development Bureau is responsible for the pre-sale management and license issuance of commercial houses in the economic development zone. The investigation and punishment of illegal acts without pre-sale license is the responsibility of Kunming Urban Management Comprehensive Administrative Law Enforcement Bureau, which has no authority to investigate and deal with illegal pre-sale acts. Chen Han, director of Kunming Municipal Bureau of housing and urban rural development, said that the pre-sale of houses was indeed approved by the Municipal Bureau according to the requirements, but the supervision was carried out by the two-level housing and urban rural development bureaus in the urban area.
"Internal subscription has a certain concealment, and the outbreak of disputes lags behind, so it is difficult for the regulatory authorities to obtain clues of real estate violations in time." Zhang Ling, deputy director of the real estate market supervision division of the Department of housing and urban rural development of Yunnan Province, said.
How to punish illegal pre-sale? Zhang Ling said that according to the regulations on the administration of urban real estate development and operation, 'if you sell commercial houses in advance without authorization, your illegal income will be confiscated and you can also be fined less than 1% of the advance payment you have collected.' She believes that illegal income is difficult to define and confiscation is difficult to implement, 'house purchase money is people's money'.
The relevant person in charge of the interviewed housing and Urban Rural Development Department said that internal subscription usually occurs in buildings with difficult capital operation or uncompleted reorganization. If the punishment is too heavy and too many fines are imposed in law enforcement, it is easy to cause the enterprise capital chain to break again and further damage the rights and interests of property buyers.
The cost of violation is low, and the regulatory punishment still needs to be strengthened
The reporter recently learned that Kunming housing and Urban Rural Development Bureau has locked all the sources of 780 Suites in Longhu Banshan real estate, stopped online signing for the record, and asked enterprises to properly deal with the problems involved in 196 households. The real estate developer promised not to evade its responsibilities, and formulated and submitted the corresponding preliminary disposal plan: customers who ask for a refund will be refunded, customers who want a house will be given a discount in combination with the current house price, and the 'air room' can replace the houses of the same house type. If an agreement cannot be reached, it is suggested to go through the judicial procedure.
The state clearly requires that all localities should earnestly fulfill the main responsibility of real estate market supervision, formulate work plans, refine work tasks, conduct comprehensive investigation and strike accurately according to the actual situation of the region.
"Supervision and punishment should be preceded by supervision. Punishment is only a means rather than an end. Violations of laws and regulations by real estate enterprises should be stopped as soon as possible, which requires competent departments at all levels to actively study management methods and innovate management means." Liu Junhai, a professor at the Law School of Renmin University of China, said that the housing and construction department should not 'sit down and enforce the law'. It should go into the market and go deep into some areas where the problems are most prominent and the interests of consumers are most seriously infringed, so as to accurately supervise and enforce the law.
Zhou Dayan, supervisor of Yunnan Real Estate Association, believes that the illegal cost is too low and the punishment is not enough, which is difficult to deter real estate enterprises. " The current punishment for violations has not become the & lsquo; High voltage line;, If we only rely on industry self-discipline, enterprises will inevitably take risks. "
Lawyer Sun Wenjie, deputy director of Yunnan Lingyun law firm, said that if there are sales of 'air room' and illegal possession of funds, which are suspected to constitute the crime of forging contracts and fraud, we should cooperate with the public security organs to intervene and severely crack down on illegal and criminal acts.
Experts remind that the housing and urban rural development departments at all levels have published the real estate pre-sale license information on the portal website. When buying a house, consumers should check the real estate pre-sale license, and do not buy or pay a deposit for the projects that have not obtained the license.
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