Regulations
of Shenzhen Special Economic
|
Zone
on Transfer of Real Estate
|
(Originally
adopted at the Seventeenth Meeting of the Standing Committee of
the First Shenzhen Municipal
People's Congress on July 24, 1993.
As revised in accordance with the Decision on Revising of
Regulations of Shenzhen Special Economic Zone on Transfer of
Real Estate
of the Thirty-third Meeting of the Standing
Committee of the Second Shenzhen Municipal People' s Congress
on June 30, 1999.)
|
Chapter
I General Provisions
|
Article
1
In order to standardize activities of transfer of real estates,
safeguard the legal rights and
interests of parties involving in
transfer of real estate, and maintain the market order of real
estate of Shenzhen Special Economic Zone (hereinafter referred
to as the "Special Zone"), these regulations
are
hereby formulated.
|
Article
2 These
regulations shall be applicable to the transfer of real estate
in the Special Zone.
|
Article
3
Real estates in these regulations refer to lands, buildings and
other things adhering to the lands.
|
Transfer
of real estates in these regulations refers to the legal acts
where natural persons, legal
persons and other organizations,
that legally have the lands-use rights and ownership of
buildings
and other things adhering to the lands, transfer their
real estates to others through trading, exchanging and donating
of the real estates.
|
Article
4 The
transfer of real estate shall abide by the principles of
legality, justice, voluntariness and
being honest and
trustworthy.
|
Article
5 In
the case of transfer of real estates, the ownership and the
land-use right of buildings and other
things adhering to the
lands shall be transferred together other than distributed.
|
Article
6 The
administrative department of real estate of Shenzhen Municipal
People' s Government (hereinafter
referred to as the "Municipal
Government" )
is the administrative department in charge of real estate market
(hereinafter referred to as the
"Competent
Authority" )
of the Special Zone, which shall abide by law to administrate
real estate.
|
Article
7 The
following real estates shall not be transferred unless having
been approved by the Competent
Authority as well as having made
up the payable price of the lands:
|
(1)
The ones with which land-use right obtained through
administrative allocation;
|
(2)
The ones which being abated of or exempted lands payable price
when obtaining the land-use right;
and
|
(3)
Other circumstances as stipulated by laws and regulations.
|
Article
8 The
following real estates shall not be transferred:
|
(1)
The ones that the Municipal Government decides to take back the
land-use right according to
a city planning;
|
(2)
The ones, which have been judged or decided to seal up or
restrict of rights of real estate
by other ways by the justice
organizations and the administrative departments;
|
(3)
The co-owned ones without the consent of the other co-owners in
writings;
|
(4)
The ones upon which a mortgage has been fixed without the
mortgagee's approval;
|
(5)
The ones which ownerships are under dispute; and
|
(6)
The ones fall into other circumstances that are prohibited to be
transferred by laws and regulations
or provisions of the
Municipal Government.
|
Article
9
To sell real estate in advance shall get the approval from the
Competent Authority.
|
Where
the real estate bought in advance is transferred again before
the registration of transfer
of the real estate being carried
out and the certificate of the ownership of the real estate
being
obtained, it shall follow relevant provisions of the
Municipal Government.
|
Article
10 The
following acts shall be deemed as the transfers of real estates:
|
(1)
Taking real estates as capitals that to be contributed to
establish enterprises legal persons;
|
(2)
Where one of the parties offers his land-use right while the
other or others provide(s) capitals
to cooperatively develop
real estates and to distribute profits based on the ownership of
the real
estate;
|
(3)
The real estates are transferred to a new owner when a company
is purchased or merged;
|
(4)
Taking real estates to pay a debt in kind; and
|
(5)
The allocation of real estates between state-owned enterprises
or other organizations.
|
Article
11 The
following acts are not the transfers of real estates:
|
(1)
The division of co-owned real estates by co-owners; and
|
(2)
The administrative allocation of real estates between state
organizations or the institutions
with financial allocation and
their subordinate organizations.
|
Article
12
In the case of transfer of real estate, the rights and
obligations stipulated in a contract of
transfer of land-use
right shall be transferred accordingly; the transferor shall
provide the contract
or its duplicate to the transferee.
|
Article
13
In the case of transfer of real estates, the transferor shall
transfer his own rights and interests
of the roads, greenbelts,
fields for rest, spare lands, lifts, stairs, connecting
corridors, corridors,
balconies or other public facilities of
the same land accordingly.
|
Where
there are no special agreements on the rights and interests of
parking lots and advertisements
in the first contract of
transfer of land-use right, such rights and interests shall be
transferred
accordingly with the real estate; where there are
special agreements, these said rights and interests shall be
owned by the registered obligee after primarily registered by
the registration organizations of
real estate.
|
Article
14
The parties involving in the real estate transfer shall handle
the registration of the transfer
of the ownership of real estate
according to the provisions of Regulations of Shenzhen
Special Economic Zone on Registration of Real Estate.
|
Article
15 The
date when the real estates registration organization examines
and approves the registration
of the transfer of real estates
shall be the date of transferring the property right of the real
estate.
|
Article
16 The
risk liabilities of real estates shall be assumed by the
transferor before the real estate transferred,
while they shall
be assumed by the transferee after the real estate transferred.
|
Article
17 Where
one or both of the parties in the transfer of real estate is
(are) individual(s) or organization(s)
from overseas, the
contract of transfer shall be notarized by a notary public
office of Shenzhen
Municipality.
|
Chapter
II Sales of Real Estates
|
Section
I Contract of Sales of Real Estates
|
Article
18 The
parties of sales of real estate shall conclude contract of sales
of real estate according to
law.
|
Article
19 The
parties shall adopt the text of contract of sales of real
estate, which uniformly made by the
Competent Authority to
conclude such contract.
|
The
contracts of sales of real estates shall include all of the
following items:
|
(1)
Names or titles and addresses of the parties;
|
(2)
Numbers of certificates of property right of the real estate;
|
(3)
Locations, areas, and four boundaries of the real estate;
|
(4)
Lot umber of the land, the character and year limits of the
land-use right;
|
(5)
Uses of the real estate;
|
(6)
Price of sales of the real estate and ways and date of payment;
|
(7)
The date of delivery of real estates;
|
(8)
Sharing rights and interests of the public parts and the rights
and duties of co-owners;
|
(9)
Liabilities for breach of contract;
|
(10)
Solutions of contract disputes;
|
(11)
Conditions and time when the contract takes effect; and
|
(12)
Other items that both parties think necessary.
|
Article
20 In the
case of selling real estate in advance, the time of delivery of
the real estate agreed on
by the parties shall be after the real
estate completed as well as checked and accepted as a qualified
project.
|
Article
21 A
businessman engaged in the development (hereinafter referred to
as the "developer" )of
real estates shall provide a written warranty of house quality
and a specification of using
the house.
|
The
quality grade, scope of repair guarantee, period of repair
guarantee and the unit to implement
the guarantees, which
examined by the project quality supervision unit, shall be
clearly recorded
in the warranty of house quality. The real
estate developer shall bear the liability of keeping the house
in good repair not less than one year according to the
agreements prescribed in the warranty of house
quality.
|
Within
the period of warranty of the house in good repair, a real
estate developer who has the real
estates repaired, resulting in
an effect to the function of the house and a loss to the
transferee
shall be liable according to law.
|
Article
22 The
contract of sales of real estate shall be invalid in case it
violates laws and regulations.
|
The
contract of sales of real estate, which is invalid, shall not be
legally binding from the date
it being concluded.
|
Article
23 Where
a contract of sales of real estate is confirmed to be invalid,
the party at fault shall be
liable for the loss, which resulted
from his fault, of the other party. In case both parties are at
fault, they shall be liable respectively.
|
Article
24 A
contract of sales of real estate may be modified or cancelled in
any one of the following circumstances:
|
(1)
being agreed upon by both parties and causing no harm to the
state' s
interests and others'
lawful rights and interests;
|
(2)
the whole or part of the contract of sales of real estate cannot
be performed due to force majeure;
|
(3)
the performance of the contract of sales of real estate becomes
unnecessary resulting from the
breach of contract by one of the
parties; and
|
(4)
the conditions for modification or cancellation the contract of
sales of real estate come out.
|
Where
both parities agree upon the modifying or canceling of a
contract of sales of real estate,
they shall conclude an
agreement in written form.
|
Where
one of the parties claim for modifying or canceling a contract
of sales of real estate according
to Item 2, 3, 4 of the first
paragraph of this article, he shall notice another party in
time.
|
Article
25 Where
the modification or cancellation of a contract of sales of real
estate causes damages to
one of the parties, the party at fault
shall bear the compensation liability.
|
Article
26 Where
the transferor fails to deliver the real estate to the
transferee in time due to his fault,
he shall pay the breach of
contract damages to the transferee. The amount of the damages
shall
follow the contract of sales of real estate in case there
is a provision in the contract or be calculated according
to a
guide rent for the period of delaying to deliver the real estate
in case there is no such
provision in the contract. If the fault
results in lose to the transferee, the transferor shall bear the
responsibility of compensation besides the damages.
|
Where
the transferor fails to deliver the real estate to the
transferee even exceeding 90 days of
the expiration time agreed
upon in the contract of sales of real estate, the transferee
shall be
entitled to cancel the contract, unless as otherwise
agreed upon in the agreements between them.
|
Article
27 Where
the transferee of the actual selling of real estate does not pay
the payable price within
specified time limit, he shall pay the
breach of contract damages for deferred payment according to
relevant rules of deferred payment of the People's Bank of
China.
|
Where
the transferee fails to pay the payable price to the transferor
even exceeding 90 days of
the expiration time agreed upon in the
contract of sales of real estate, the transferor shall be
entitled to cancel the contract, unless as otherwise agreed upon
in the agreements between them.
|
Article
28 Where
the transferee of the real estate sold in advance does not pay
the money of the real estate
in time according to the contract
of sales of real estate, he shall be liable for the breach of
contract according to the following prescriptions:
|
(1)
Where the transferee' s payment is more than 50% of the payable
price, he shall pay the breach
of contract damages for deferred
payment according to relevant rules on deferred payment of the
People's Bank of China to the transferor; and
|
(2)
Where the transferee' s payment is less than 50% of the payable
price, the transferor may ask
him for paying the breach of
contract damages. If a transferor fails to pay the payable price
even
exceeding 90 days of the expiration time agreed upon in the
sales contract of real estates, the transferor shall
be entitled
to cancel the sales contract of real estates.
|
Article
29 Where
the contents of the contract of sales of real estate are not
performed wholly after the registration
of transfer of the
ownership of the real estate, the parties shall continue to
perform the contract.
|
Section
II Actual Sales of Real Estates
|
Article
30 In the
case of actual sales of real estate, the land-use right and
ownership of buildings and other
things adhering to the land of
the transferor shall have been registered and the transferor has
got the certificate of property right of the real estate.
|
Article
31 Where
the real estate is transferred through sales, the following
parties shall have preemptive
right under equal conditions:
|
(1)
co-owners of the real estate; and
|
(2)
tenant of the real estate.
|
Where
there are the above-mentioned parties on one real estate sales
simultaneously, the enjoyment
of the preemptive right shall
follow the above-mentioned order.
|
Article
32 The
transferee shall have the right to know the situation of real
estate including ownership, structure,
fitment, relationship of
mortgage, relationship of lease, neighborhood relationship and
the contract
of transfer of the land, while the transferor shall
have the duty to disclose such relevant information. Where the
transferor intentionally conceals the true circumstances, which
results in the invalidity of the
contract of sales of real
estate, he shall be liable for the loss to the assignee.
|
Article
33 Where
the real estate has been rented before the transaction, the
transferee shall continue to
perform the original contract of
house leasing.
|
Section
III Real Estate Sales in Advance
|
Article
34 To
sell real estate in advance, the real estate developer shall
meet the following requirements:
|
(1)
Having had the land-use right registered and got the certificate
of property right of the real
estate;
|
(2)
Having got the certificates of "permission to
building" and "permission to commencement
of
construction";
|
(3)
Besides having paid off the payable price for the land, the
capital invested in the construction
shall have reached 25% of
total investment of construction budget and been examined by a
certified
public accountant;
|
(4)
Having concluded an agreement on supervision of the selling
price in advance with a financial
institution; and
|
(5)
The land-use right is not mortgaged or the relationship of
mortgage has been terminated.
|
Anyone
who meets the above-mentioned requirements may be issued the
certificate of permission to
sales of real estates in advance
with the approval of the Competent Authority.
|
Article
35 The
developer of real estates shall be liable for the authenticity
of documents being shown in
public such as the description,
design blueprint and advertisement of sales of the real estate
selling in advance.
|
Article
36 The
funds resulting from selling real estates in advance shall be
collected by a financial institution,
which is entrusted by the
developer.
|
The
financial institution to collect the funds resulting from
selling real estates in advance shall
be the supervisory
organization of the funds.
|
Article
37 The
funds resulting from selling the real estate in advance shall be
earmarked for its specified
purpose only, the supervisory
institution of construction shall inform the supervisory
institution
of selling in advance in writing to allocate the
funds to a transferor according to a schedule stipulated by a
construction contract and actual progress of the construction.
Where the supervisory institution
of construction does not issue
the notice in written form, the supervisory institution of
selling
in advance shall not allocate the money directly
to the
transferor.
|
Where
the supervisory institution of construction and the supervisory
institution of selling in
advance supervise and manage
inappropriately, which results in a loss to the transferee, they
shall
bear joint and several liability of compensation with the
developer.
|
Article
38 A
developer of real estate shall submit the sales contract of real
estate to the organization of
the registration of real estates
to put on records according to the rules formulated by the
registration
organization of real estates.
|
Article
39 The
design of public facilities of the real estate to be sold in
advance may not be changed in the
course of construction. In
case it does need modifying the design, it shall be required to
get
the permission to at least four fifths of all transferees.
|
Article
40 The
developer shall not mortgage the real estate that has been sold
in advance.
|
Chapter
III Exchange and Donation of Real Estates
|
Article
41 The
exchange of real estates refers to any legal act where the
parties transfer their own real
estates to each other.
|
Article
42 In the
case of exchange real estates, the parties shall conclude
contracts of exchanging real estates
according to law.
|
The
conclusion, performance, modification and cancellation of a
contract of exchange of real estates
shall be carried out with
reference to relevant prescriptions in the contract of sales of
real
estate.
|
Article
43
Donation of real estates refers to any legal acts where one of
the parties donates his own real
estates to others without
consideration.
|
Article
44 A
natural person, being a donor, shall have full civil capacity.
|
Article
45 A
donee of real estates may be a country, a natural person, a
legal person, or other organizations
unless as otherwise
stipulated by laws and regulations.
|
Article
46 In the
case of donating real estates, the donor and the donee shall
conclude a contract of donating
real estates.
|
Article
47 The
time when a contract of donating real estates takes effect shall
be the time of registration
of the transfer of property right of
the real estates.
|
Article
48 In the
case of a conditional donation, if the donee does not fulfill
obligations according to the
agreement, the donor may demand him
to do so or revoke the registered donation. If it is unable or
unnecessary to carry out the conditions, the donor may not
revoke the donation that has been taken effect.
|
Chapter
IV Agency and Broker of Transfer of Real Estates
|
Article
49 Any
party may entrust an agent to transfer real estates. In the case
of entrusting an agent to
transfer real estates, the procedure
of entrusting shall be handled by the parities concerned.
|
Article
50 A
natural person, or a legal person, or any other organization
that engages in the transfer of
real estate shall obtain the
corresponding qualification. The conditions for and procedure of
obtaining
the qualification shall be subject to the rules
formulated by the Municipal Government.
|
Article
51 An
agency or a broker shall buy and sell the real estates at the
price ordered by the consignor.
|
Article
52 The
standard of a commission of an agent who transfers real estates
shall be subject to the agreement
agreed upon by the consignor
and the agent, while that of a broker shall be in accordance
with
the rules formulated by the Municipal Government.
|
Article
53 Where
a broker act on behalf of the consigner to transfer real
estates, he shall examine the validity
of the ownership of the
real estates and the qualification of the parties involved in
the transfer
of the real estates.
|
A
broker shall affix his signature or seal in the contract of
transfer of real estates.
|
Article
54 A
broker, who fails to get the entrusted real estates registered
or fails to do so within specified
time limit due to his fault
and results in loss to the transferee, shall be liable for the
loss.
|
Chapter
V Taxation and Charge of Transfer of Real Estates
|
Article
55 In the
case of transfer of real estates, the parties involved in shall
pay taxes according to law.
|
Article
56 In
case the real estate rises in value when it is transferred, the
transferor shall pay the charge
for increment of land value. The
collection measures of the charge for increment of land value
are to be formulated by the Municipal Government.
|
Article
57 Where
there are price differences in the exchange of real estates, the
variable levy and fees shall
be paid in accordance with relevant
regulations.
|
Chapter
VI Punishment Provisions
|
Article
58 Where
the transferor transfers real estates in violation of Article 7
of these regulations, the
transfer shall be invalid and the
transferor shall be imposed a fine of 10% of the transferring
price of the real estate by the Competent Authority.
|
Article
59 Where
anyone transfers real estates in violation of Item (1), Item (2)
and Item (6) of Article 8,
Paragraph 1 of Article 9 and Article
30, the transfer shall be invalid; the transferor shall be
confiscated of his illegal gains in case he gains and imposed a
fine of 10% of the transferring price of the real
estates by the
Competent Authority; in case the transferor has the certificate
of qualification
to develop real estates, he shall be subject to
a punishment of no permission to have annual examination of the
certificate or be revoked of the certificate based on the
seriousness of the circumstances.
|
Article
60 Where
the developer of real estates deliver the real estate before its
completion and being checked
and accepted as a qualify project
in violation of Article 20 of these regulations, the delivery
shall be invalid and the transferee shall be entitled to refuse
to accept such delivery; The Competent Authority
may give the
developer a warning or impose a fine of 10% of the transferring
price upon the developer.
If the circumstances are serious, the
developer shall be subject to a punishment of no permission to
have annual examination of the certificate of qualification to
develop real estate or being revoked of its
certificate.
|
Article
61 Where
the developer of real estates sell the real estate in advance
before handing in the sales
contract of real estate to the
registered office to put on record according to relevant
regulations,
it shall be imposed upon a fine of less than 5% of
the transferring price by the Competent Authority. If the
transferor has the certificate of qualification to develop real
estate, it shall be subject to a punishment
of no permission to
have annual examination of the certificate or suspending the
certificate based
on seriousness of the circumstances.
|
Article
62
Anyone, who manages real estates in violation of Article 50 of
these regulations, shall be confiscated
of his illegal gains and
imposed upon a fine of not less than 1 time but not more than 2
times
of the illegal gains by the Competent Authority.
|
Article
63 Any
party, who conceals the true situation of the transfer of real
estates and does not pay relevant
charges according to relevant
regulations, shall be ordered to compensate the payment and
imposed
upon a fine of not less than 2 times but not more than 5
times of the payable charges.
|
Article
64 In
case any party objects to the administrative sanction imposed by
the Competent Authority, it
may apply for reconsideration to the
reconsidering organization of the Municipal Government within 15
days upon the date receiving the decision of punishment. The
organization shall make a decision on reconsideration
within 60
days from the date receiving the application. In case the party
objects the decision
on reconsideration, it may directly file a
lawsuit before a people's court within 15 days upon the date
receiving the decision.
|
If
the party neither applies for reconsideration, nor files a
lawsuit, nor complies with the decision
on administrative
sanction imposed by the Competent Authority, the Competent
Authority may apply
to a people's court for compulsory
enforcement.
|
Chapter
VII Supplementary Provisions
|
Article
65 The
conditions, scope and procedure of the transfers of commercial
housing with low benefit margin
and welfare residential
buildings shall be subjects to relevant regulations formulated
by the Municipal
Government.
|
Article
66 The
Municipal Government may formulate the detailed implementing
measures in accordance with these
regulations.
|
Article
67 These
regulations shall take effect as of October 1, 1993.
|
Where
there are contradictions between the provisions of these
regulations and other relevant rules
that enacted in the Special
Zone before, these regulations shall prevail.
|