[Abstract]

From 2017 to now, our lawyers have accepted the entrustment of a real estate state-owned enterprise to provide special services for the development land that it intends to participate in the acquisition of the development land vacated from the "returning to the city and entering the park" project of a state-owned enterprise, combing the project information, the existing legal policy environment, participating in business negotiation, designing the transaction path and contract documents.

[Key words] real estate management law on the transfer of real estate from the city to the park to the second to the third net land

[Project information]

The property right of the project is a subsidiary of a central enterprise group, and the land use of the project is industrial purpose. In response to the call of the municipal government to "return to the city and enter the park", the enterprise intends to free up all the land used in the plant area through the overall relocation. The planned land for the land to be used for commercial use shall be changed, and the land after the change of use shall be transferred to other state-owned enterprises according to the existing policies, and the whole relocation expenses of the enterprise shall be paid by using the land transfer income.

The target plot is located in the core area of the city and adjacent to the city's commercial center. The municipal government has listed the target plot in the "special plan for the redevelopment of urban and rural low efficiency land". According to the planning conditions given by the urban and Rural Planning Bureau of the city, the planned purpose of the target plot has been adjusted to residential, commercial, cultural and other land. The municipal government intends to re-use the land for the target plot through agreement transfer. The project property right unit intends to transfer the target plot to other state-owned enterprises for real estate development in an appropriate way after obtaining new construction land use certificate. Through sorting out project data, inquiring and sorting out existing laws and local policy environment, understanding existing administrative approval procedures of the target plot, minutes of special government meetings, communication with property rights units and business negotiation, the lawyers of the Institute comprehensively combed the key legal problems existing in the project, and designed the transaction path and important terms reasonably, and successfully realized the implementation The established goal of promoting transaction is put forward on the basis of preventing legal risk.

[Difficulty or novelty of the project]

The difficulty of this project is:

First, the land transfer mode to be adopted for the target plot conflicts with the existing laws.

According to the provisions of Article 39, paragraph 1 of the law on the administration of real estate, "if the right to use land is acquired by means of assignment, the following conditions shall be met when transferring the real estate: (2) If investment and development is carried out according to the contract of assignment, if it belongs to the housing construction project, more than 25% of the total investment in development shall be completed... ". Since the target plot is obtained by the project owner after the land use formalities are re handled through the agreement transfer, the land use right of the target land shall be transferred only after meeting the proportion of project development investment according to the requirements of the above-mentioned laws. However, the target plot is intended to transfer to other state-owned enterprises without development after obtaining new construction land use certificate, which may involve the legal issues of "net land transfer". The basis for the project owner to adopt this transfer method is: according to the minutes of the special meeting of the municipal government, the municipal government agrees that the target land will pass the land after the land use change is handled based on the provisions of the normative document "guiding opinions on further promoting the redevelopment of low utility land in cities and towns (Trial)" (dhzf [2016] No. 147) issued by the Ministry of land and resources Transfer, independent development and other appropriate ways to cooperate with real estate state-owned enterprises.

After the lawyer of the exchange searches the above normative documents, Article 3 (7) of the document stipulates that "..." On the premise of conforming to the plan, the original state-owned land-use right holder can transform and develop the state-owned construction land used by the former state-owned construction land through independent, joint venture, share taking and transfer, etc. " The normative document is of low level and the content does not make clear the specific way of land transfer, so the transfer mode of the target land is faced with legal and administrative obstacles.

Second, the transfer of the target plot needs to be conducted through the property rights trading institution in the form of public transaction.

The project property right unit is a subsidiary of the central enterprise. The transfer of the land use right under its name shall be conducted through the property rights trading institution in public according to the relevant provisions such as the measures for the supervision and administration of state-owned assets transactions of enterprises and other relevant provisions. The target plot is divided into about 20 land, and it faces the risk that all or part of the land is acquired by other participating competitors when it is open to the public. Special arrangements are required in terms of contract and terms of transaction to control the risks.

Third, there are a lot of contents to be removed in the target plot, and the target land has the possibility of uncertain delivery of net land.

The target plot is now the industrial production site of the property right unit, and has not been stopped, and there is a large amount of content to be removed on the ground. The transfer of the target land by the property right unit is the current transfer and the delivery by stages. Because of the uncertainty in demolition and the large demand of the whole relocation fund of the property right unit, it is necessary to make targeted agreements through contract arrangement and payment rhythm to control the risk of uncertainty in related demolition.

[Lawyer response]

First, ensure the legal and effective transaction plan

In view of the risk of violating Article 39 of the real estate management law in the transaction plan, the lawyer of the exchange first determines that article 39 of the real estate management law is not mandatory and does not affect the effectiveness of the contract by inquiring the judicial interpretation, minutes of the Supreme Court meeting and case retrieval. In order to prevent the risk of contract effectiveness, the paper focuses on the design of net transfer obligation, the relative party obligation in case of administrative obstacles, and the payment terms of the acquirer;

Second, ensure the complete realization of the objectives

Since the target plot involves more parcels, there are still a lot of demolition issues on the ground. The lawyer of the exchange has targeted control over the risk of delisting and land-use flat delivery through clear contract purpose, negotiation with property rights units to determine listing conditions, setting up the connection between delivery rhythm of land demolition and payment rhythm and withdrawal mode.

[Achievements and summary of legal services]

As of december2018, our lawyers participated in the design and demonstration of three round trading plans and completed the drafting of version 4 transaction documents. At present, the project is steadily advancing, and our lawyers will continue to follow up. For such urban renewal projects, we should pay close attention to the degree of policy matching perfection, effectiveness of policies and time windows for effective implementation of policies of local governments. Combining with the characteristics of the project, the matching degree between project operation cycle and policy time window should be evaluated, and corresponding risks should be evaluated and countermeasures should be made. In addition to policy risks, the risk of demolition that may be involved in the removal of old plant areas of land and objects should be comprehensively considered in the dimensions of cost, time and policy.