房地产转让
房地产转让,是指房地产权利人通过买卖、赠与或者其他合法方式将其房地产转移给他人的行为。
下列房地产,不得转让:
(一)以出让方式取得土地使用权的,不符合本法第三十九条规定的条件的;
(二)司法机关和行政机关依法裁定、决定查封或者以其他形式限制房地产权利的;
(三)依法收回土地使用权的;
(四)共有房地产,未经其他共有人书面同意的;
(五)权属有争议的;
(六)未依法登记领取权属证书的;
(七)法律、行政法规规定禁止转让的其他情形。
以出让方式取得土地使用权的,转让房地产时,应当符合下列条件:
(一)按照出让合同约定已经支付全部土地使用权出让金,并取得土地使用权证书;
(二)按照出让合同约定进行投资开发,属于房屋建设工程的,完成开发投资总额的百分之二十五以上,属于成片开发土地的,形成工业用地或者其他建设用地条件。
转让房地产时房屋已经建成的,还应当持有房屋所有权证书。
以划拨方式取得土地使用权的,转让房地产时,应当按照国务院规定,报有批准权的人民政府审批。有批准权的人民政府准予转让的,应当由受让方办理土地使用权出让手续,并依照国家有关规定缴纳土地使用权出让金。
以划拨方式取得土地使用权的,转让房地产报批时,有批准权的人民政府按照国务院规定决定可以不办理土地使用权出让手续的,转让方应当按照国务院规定将转让房地产所获收益中的土地收益上缴国家或者作其他处理。
房地产转让,应当签订书面转让合同,合同中应当载明土地使用权取得的方式。
房地产转让时,土地使用权出让合同载明的权利、义务随之转移。
以出让方式取得土地使用权的,转让房地产后,其土地使用权的使用年限为原土地使用权出让合同约定的使用年限减去原土地使用者已经使用年限后的剩余年限。
以出让方式取得土地使用权的,转让房地产后,受让人改变原土地使用权出让合同约定的土地用途的,必须取得原出让方和市、县人民政府城市规划行政主管部门的同意,签订土地使用权出让合同变更协议或者重新签订土地使用权出让合同,相应调整土地使用权出让金。
商品房预售,应当符合下列条件:
(一)已交付全部土地使用权出让金,取得土地使用权证书;
(二)持有建设工程规划许可证;
(三)按提供预售的商品房计算,投入开发建设的资金达到工程建设总投资的百分之二十五以上,并已经确定施工进度和竣工交付日期;
(四)向县级以上人民政府房产管理部门办理预售登记,取得商品房预售许可证明。
商品房预售人应当按照国家有关规定将预售合同报县级以上人民政府房产管理部门和土地管理部门登记备案。
商品房预售所得款项,必须用于有关的工程建设。
商品房预售的,商品房预购人将购买的未竣工的预售商品房再行转让的问题,由国务院规定。
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TRANSFER OF REAL
ESTATE
Transfer of
real estate
shall mean the
move of the
ownership of a
real estate from
the original
owner to another
person through
sale, donation
and other lawful
means.
Real estate
with following
conditions shall
not be
transferred:
(1) The
acquirement of
the right of
land use through
lease does not
comply with
conditions as
prescribed in
Article 39 of
this law;
(2) The title
to the real
estate has been
sealed up or
restricted in
any form upon
ruling or
deciding of
judicial
authorities or
administrative
departments in
accordance with
the law;
(3) The right
of land use has
been taken back
in accordance
with the law;
(4) Without a
written consent
of other owners
as under joint
ownership;
(5) There are
disputes on the
title;
(6) Those
which have not
been registered
and obtained
title
certificates in
accordance with
the law; and
(7) Other
condition that
the transfer is
forbidden
according to the
law or
administrative
rules.
The transfer
of real estate
with the right
of land use
shall comply
with the
following
conditions:
(1) All the
fees in concern
with the lease
of the right of
land use have
been paid in
accordance with
provisions
prescribed by
the contract for
the lease and
the certificate
of the right to
use the land has
been obtained;
and
(2) Investment
and development
have been done
in accordance
with the
provisions
prescribed by
the contract for
the lease; for
housing
construction
projects, 25
percent of the
total investment
has gone
through; for
development of
large tracts of
land, land has
been available
for the
construction of
industrial or
other projects.
When a real
estate is
transferred with
a finished
building, title
certificate for
the building is
also needed.
When transfer
of a real estate
with the right
of land use
being obtained
through
allocation, an
application
should be
submitted to an
empowered
people’s
government for
approval, in
accordance with
the provisions
of the State
Council
government.
After the
approval by a
related people’s
government, the
transferee shall
go through the
procedures for
transfer of the
right of land
use and pay
lease fees for
land use in
accordance with
the relevant
State
provisions.
If the related
people’s
government
refuses to carry
out the
procedures of
the transfer of
right of land
use in
accordance with
the provisions
of the State
Council, the
transferor
shall, in
accordance with
the provisions
of the State
Council, hand
over the income
for transfer of
the land arising
form the
transfer of real
estate to the
State or handle
them otherwise.
A written
contract must be
signed in real
estate transfer,
and the contract
shall carry the
clause on the
form of
obtaining the
right of land
use.
When a real
estate is
transferred, the
rights and
obligations
carried in the
contract for the
lease of the
right of land
use are
transferred
accordingly.
When transfer
of a real estate
with the right
of land use
obtained through
lease, the term
of the right to
use the land is
the remaining
time of the term
prescribed by
the original
contract after
deducting the
time that the
land has been
actually used by
the original
land user.
After the
transfer of a
real estate with
the right of
land use
obtained through
lease, if the
transferee wants
to change the
use of the land
prescribed by
the original
contract for the
lease of the
right of land
use a consent
must be acquired
from the
transferor and
the urban
planning
department of
the city county
people’s
government with
an agreement
signed on
revision of the
contract or a
signing of a
contract with an
adjustment of
the lease fees
of the right of
land use.
An advanced
sale of
commodity houses
must meet the
following
conditions:
(1) All the
lease fees of
the right of
land use have
been paid and a
land use
certificate has
been obtained;
(2) A
construction
planning permit
has been held;
(3) Funds put
for construction
of the houses
for advanced
sale have
exceeded 25
percent of the
total budgetary
investment for
the project and
the construction
schedule and
date of
completion of
the project have
been set; and
(4) An advance
sales
registration has
been made with
the real estate
administration
of the people’s
government above
the county level
and a permit of
advance sales of
commodities
house has been
obtained.
The advance
seller of the
commodity houses
shall, in
accordance with
the relevant
State
provisions,
report the
advance sales
contracts for
record to real
estate
administration
and land
administration
departments of
the people’s
government above
the county
level.
The funds
derived from
advance sales of
commodity houses
must be used in
construction of
the relevant
projects.
The procedures
for the transfer
of houses in
advance sales by
the buyers of
the houses will
be stipulated by
the State
Council. |