First, laws and regulations expressly prohibit renting.
According to the provisions of Article 6 of the Measures for the Administration of Urban Housing Leasing, the following houses shall not be leased:
(1) Failing to obtain the house ownership certificate according to law;
(two) the judicial organs and administrative organs have ruled or decided to seal up or restrict the real estate rights in other forms according to law;
(three) * * * has a house without the consent of * * * *;
(4) The ownership is disputed;
(5) Belonging to illegal construction;
(six) does not meet the safety standards;
(7) It has been mortgaged without the consent of the mortgagee;
(eight) does not meet the relevant provisions of the public security, environmental protection, health and other competent departments;
(nine) other circumstances prohibited by relevant laws and regulations.
As can be seen from the above provisions, the rented house should have clear ownership and meet the requirements of safety, planning, environmental protection and hygiene. These regulations are well understood by everyone, but the rented house has not obtained the ownership certificate according to law; * * * There is a room without the consent of * * * *; The ownership is controversial; Belonging to illegal buildings; In other cases where relevant laws and regulations prohibit renting, lessors and lessees often ignore the lease of mortgaged houses.
Second, we should pay attention to the legal provisions when renting a house with a mortgage.
On September 29th, 2000, the Judicial Committee of the Supreme People's Court adopted the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Guarantee Law of People's Republic of China (PRC) at its meeting1133rd. Article 66 stipulates that if the mortgagor leases the mortgaged property, the lease contract shall not be binding on the transferee after the mortgage right is realized. If the mortgagor fails to inform the lessee in writing that the mortgaged property has been mortgaged when leasing the mortgaged property, the mortgagor shall be liable for the losses caused to the lessee by leasing the mortgaged property; If the mortgagor has informed the lessee in writing that the property has been mortgaged, the lessee shall bear the losses caused by the realization of the mortgage right.
According to the provisions of the judicial interpretation of the above-mentioned guarantee law, the owner of the house rents the mortgaged house. If the lessor fails to inform the lessee in writing that the house has been mortgaged, the mortgagor (usually the lessor) shall bear the losses caused by renting the mortgaged house. For the lessee, if the lessor rents the mortgaged house, after the mortgage is realized, the lease contract is not binding on the transferee, that is, the lessee can only claim compensation from the lessor. If the lessor has informed the lessee in writing that the house has been mortgaged, the loss can only be borne by the lessee. For the mortgaged house, if the mortgagee represents the national interests, without the mortgagee's consent and written notice to the lessee, the lease behavior is invalid because it harms the national interests (the Contract Law clearly stipulates that the contract is invalid). If the mortgagee agrees to rent the house, the lessor shall fulfill the obligation of written notification, and the lessee shall clearly know the legal risks of renting the mortgaged house.
Three, some legal problems that are easy to appear when signing the lease contract.
In real cases, the contract loopholes that are easy to appear when signing a lease contract mainly include:
1. The agreement on the lease subject matter is unclear, especially the error in the number of leased houses (the lease area agreed in the contract and the actual lease area), which determines that the rent will be refunded less. ) and quality (the situation before and after the house lease determines the repair obligation before and after the house delivery. Disputes caused by unclear agreement;
2. The use agreement of the leased house is not clear, and the lessee uses the leased house in an overloaded and predatory manner, which leads to the worrying lease condition of the leased house after the lease term expires, and even makes it impossible to continue to use it reasonably. For example, there is a typical case: the leased house listed in the property certificate provided by the parties is located on the first and second floors of the building, which is used as a "commercial house" and opened by the first-time lessee as an entertainment venue or catering industry. During the lease period, in order to maximize the benefits, the lessee is open 24 hours a day and the guests are in an endless stream. Neighbors above the third floor (128 households) are miserable, which has caused extremely bad influence. The lease expires and the lessee leaves. However, the property management company and the owners of the * * * building are dissatisfied with this. After the owners' meeting, it was unanimously approved by a show of hands, and it was decided that the store should not operate the entertainment and catering industry, which eventually led to limited ownership and the absence of owners.
3. The agreement on the maintenance obligation and repair obligation of the leased house is not clear, which leads to disputes over the refund of the deposit when the contract is terminated. According to the relevant provisions of the contract law, the lessor is generally responsible for maintenance, unless otherwise agreed by the parties.
In real cases, the common frauds in the process of contract performance mainly include:
1. The lessor fails to deliver the leased property within the time stipulated in the contract, or the delivered property is defective. In practice, it is often manifested as delay in performance or defects in performance, which damages the interests of the lessee (water and electricity are cut off, roads are blocked, venues are unknown, etc.). )。
2. The lessor fails to perform the repair and maintenance obligations agreed in the contract. Although the defects of the leased house are not caused by the fault of the lessee, disputes often occur.
3. The lessee failed to pay the rent as agreed in the contract, mainly due to the delayed delivery.
4. The lessee changes the status quo of the leased house without authorization.
5. The lessee subleases, transfers or subleases or transfers the leased house in disguised form without authorization.
6. The lessee fails to return the leased house within the time limit, or refuses to vacate the house.
7. The lessor uses the leased house to collect the deposit, security deposit and transfer fee. This situation is typical. Let's take a case: the lessor sublets the leased house by taking advantage of the defects in the lease contract (whether subletting is allowed or not) and collects the deposit, performance bond, transfer fee and rent difference. When the lease expires, the lessee can't find the lessor (sublessor), but the lessor (sublessor) has actually taken away a lot of money. Of course, the lessee who has suffered huge losses will not easily vacate the house for the landlord, and the landlord will naturally take back the house. This conflict of interest cannot be reconciled, so we can only resort to the law. In the end, the innocent landlord and the kind third person (lessee) will suffer.
Fourth, intelligent prevention.
In order to prevent these loopholes and fraud, we should do this:
1. Know as much about one party as possible before concluding the lease contract.
Before concluding a lease contract, the legal status, business scope, credit standing, performance ability and business reputation of the other party shall be investigated. If it is difficult for you to understand, you can entrust a lawyer to inquire with the industrial and commercial department where the other party is located, and you can understand it through the other party's same industry or related enterprises.
2. The house lease contract shall be drafted, revised and reviewed by professional lawyers.
(1) The terms in the lease contract should be as detailed and clear as possible.
(2) the terms of the contract should be as comprehensive as possible, especially the main terms should not be omitted, otherwise disputes will easily occur.
(3) The wording of the contract should be carefully considered, and the expression should be clear and specific, avoiding ambiguity and multiple interpretations.
(4) In the lease contract, the use and maintenance of the leased house should be clearly defined to avoid disputes.
(5) The lease contract clearly stipulates the terms of breach of contract and the amount of compensation.
(6) In order to avoid contract fraud, some clauses can be attached, such as guarantee clauses, term clauses and conditional clauses, to ensure the smooth performance of the contract.
(seven) housing lease shall be in written form. If it is not in writing, it is regarded as an indefinite lease. Non-fixed lease can be terminated at any time according to law.
Verb (short for verb) remedy.
When encountering problems, the following remedial measures can be taken to reduce or recover losses.
1. If the lessor fails to deliver the lease item on time, so that the lessee can't achieve the expected purpose of the contract, the lessee may request to terminate the contract, pay liquidated damages or compensate for the losses.
2. For the leased house with special use requirements, the lessor shall deliver relevant series of instructions, assembly drawings, operating procedures, etc. , and clearly stipulated in the lease contract.
3. If the right to lease the house is flawed, and the third party claims the right to lease the house, so that the lessee cannot use the income, the lessee may request rent reduction or rent-free.
4. If the lessee fails to pay or delays in paying the rent without justifiable reasons, the lessor may require the lessee to pay within a reasonable time limit, and the lessor who fails to pay within the time limit may terminate the contract.
5. If the lessee changes the status quo of the leased house without authorization, the lessor may require the lessee to restore the original state or compensate for the losses. If the lessor agrees to increase the value of the leased house, the lessee may require the lessor to pay a certain fee when returning the leased house, unless otherwise agreed by both parties.
6. If the lessee sublets the leased house to others without the consent of the lessor, the lessor has the right to terminate the contract.
6. General liability for breach of contract.
1, the lessor's liability for breach of contract
(1) If the house and its ancillary facilities are not delivered to the lessee for use as agreed, it shall pay liquidated damages; If losses are caused to the lessee, it shall also be responsible for compensation.
(2) If the delivered house and its ancillary facilities do not conform to the provisions of the contract, or the house is not maintained according to the provisions of the contract, which endangers the normal and safe use of the lessee, it shall be responsible for the maintenance; The lessee has the right to demand payment of liquidated damages; If losses are caused to the lessee, it shall also be responsible for compensation.
(3) If the lessee's preemptive right or preemptive right is not guaranteed according to law when selling or subletting the house, it shall be responsible for compensating the losses.
2, the lessee's liability for breach of contract
(1) If the rent is not paid as agreed, in addition to the overdue rent, it shall also pay liquidated damages. If the rent is in arrears for a certain period (6 months), the lessor may terminate the contract.
(2) If the rented house and its ancillary facilities are unreasonably damaged due to improper use, it shall be responsible for restoring the original state or compensating for the losses.
(3) In case of subletting, lending, changing the leased house or using the house for illegal activities without authorization, the lessor has the right to terminate the contract and demand payment of liquidated damages.
Seven. Supplementary provisions: relevant provisions of the Housing Lease Contract Law.
Article 212 A lease contract is a contract in which the lessor delivers the lease item to the lessee for use and profit, and the lessee pays the rent.
Article 213 The contents of a lease contract include the name, quantity, purpose, lease term, rent, payment term and method, maintenance and other terms of the lease item.
Article 214 The lease term shall not exceed 20 years. More than twenty years, the excess is invalid. Upon the expiration of the lease term, the parties may renew the lease contract, but the agreed lease term shall not exceed 20 years from the date of renewal.
Article 215 If the lease term is more than six months, it shall be in written form. If the parties fail to adopt a written form, it shall be regarded as an indefinite lease.
Article 216 The lessor shall deliver the lease item to the lessee as agreed, and keep the lease item in line with the agreed purpose during the lease period.
Article 217 The lessee shall use the lease item in the agreed way. If the method of using the lease item is not prescribed or clearly prescribed, and cannot be determined according to the provisions of Article 61 of this Law, it shall be used according to the nature of the lease item.
Article 218 Where the lessee uses the lease item according to the agreed method or the nature of the lease item, thereby causing losses to the lease item, it shall not be liable for damages.
Article 219 Where the lessee fails to use the lease item in accordance with the agreed method or the nature of the lease item, thereby causing losses to the lease item, the lessor may terminate the contract and demand compensation for the losses.
Article 220 The lessor shall perform the maintenance obligations of the lease item, unless otherwise agreed by the parties.
Article 221 Where the lease item needs maintenance, the lessee may require the lessor to maintain it within a reasonable period of time. If the lessor fails to perform the maintenance obligation, the lessee can carry out the maintenance by himself, and the maintenance expenses shall be borne by the lessor. If the maintenance of the leased property affects the lessee's use, the rent shall be reduced or the lease term shall be extended accordingly.
Article 222 The lessee shall take good care of the lease item, and shall be liable for damages if the lease item is damaged or lost due to improper care.
Article 223 The lessee may, with the consent of the lessor, improve or add the lease item.
If the lessee improves or adds other things to the lease item without the consent of the lessor, the lessor may require the lessee to restore the original state or compensate for the losses.
Article 224 The lessee may sublease the lease item to a third person with the consent of the lessor. If the lessee sublets, the lease contract between the lessee and the lessor shall remain valid, and if a third party causes losses to the leased property, the lessee shall compensate for the losses. If the lessee sublets without the consent of the lessor, the lessor may terminate the contract.
Article 225 During the lease term, the proceeds from the possession and use of the lease item shall belong to the lessee, unless otherwise agreed by the parties.
Article 226 The lessee shall pay the rent at the agreed time limit. If the payment period is not agreed or clearly agreed, it cannot be determined according to the provisions of Article 61 of this Law. If the lease term is less than one year, it shall be paid at the expiration of the lease term; If the lease term is more than one year, it will be paid every year; if the remaining term is less than one year, it will be paid at the expiration of the lease term.
Article 227 Where the lessee fails to pay or delays in paying the rent without justifiable reasons, the lessor may require the lessee to pay within a reasonable period of time. If the lessee fails to pay within the time limit, the lessor may terminate the contract.
Article 228 Where the lessee is unable to use or benefit from the lease item due to the claim of a third party, the lessee may request a reduction in rent or not to pay rent.
Where a third party claims rights, the lessee shall promptly notify the lessor.
Article 229 During the lease term, if the ownership of the lease item changes, the validity of the lease contract shall not be affected.
Article 230 Where the lessor sells the leased house, it shall notify the lessee within a reasonable period before the sale, and the lessee shall have the preemptive right under the same conditions.
Article 231 Where the lease item is damaged or lost due to reasons not attributable to the lessee, the lessee may request to reduce the rent or not pay the rent. If the purpose of the contract cannot be achieved due to partial or total damage or loss of the lease item, the lessee may terminate the contract.
Article 232 If the lease term is not prescribed or clearly prescribed by the parties and cannot be determined in accordance with the provisions of Article 61 of this Law, it shall be regarded as an indefinite lease. The parties may terminate the contract at any time, but the lessor shall notify the lessee before a reasonable time.
Article 233 Where the lease item endangers the safety or health of the lessee, the lessee may terminate the contract at any time, even if the lessee knew that the quality of the lease item was unqualified when concluding the contract.
Article 234 If the lessee dies during the lease of the house, the person who lived together before his death may lease the house in accordance with the original lease contract.
Article 235 Upon expiration of the lease term, the lessee shall return the lease item. The returned lease item shall conform to the state after use in accordance with the agreement or the nature of the lease item.
Article 236 Upon expiration of the lease term, if the lessee continues to use the lease item and the lessor does not raise any objection, the original lease contract will remain valid, but the lease term is indefinite.
Eight, the lease contract model
Van ibn:
House lease contract
Lessor (Party A):, male/female, born on the year, ID number, lessee (Party B):, male/female, born on the year, ID number, year, both parties have reached the following agreement on the lease of this house:
1. Party A will lease part of the house located in BuildingNo. to Party B for residential use. The lease term is from year month day to year month day.
2. The monthly rent of the house is RMB yuan, which is settled on a monthly/quarterly/annual basis. At the beginning of each month/quarter/year, Party B shall pay Party A the rent for the whole month/quarter/year.
3. During the lease period, Party B shall bear the expenses of water, electricity, heating, gas, telephone and property caused by Party B's residence. At the end of the lease, Party B shall pay the cleaning fee.
4. Party B shall not damage the premises and facilities at will. If decoration or renovation is needed, Party A shall first obtain the consent and bear the expenses for decoration and renovation. At the end of the lease, Party B shall restore the premises and facilities to their original state.
5. After the lease expires, if Party B requests to continue the lease, it must be submitted to Party A months in advance, and Party A will give a reply within days after receiving Party B's request. If we agree to continue the lease, we will renew the lease contract. Under the same conditions, Party B has the priority to lease.
6. During the lease term, either party must notify the other party in writing months in advance and sign the termination contract after consultation between the two parties. If one party terminates the contract by force, it shall pay a penalty of RMB to the other party.
7. In case of any dispute, Party A and Party B shall settle it through friendly negotiation. If negotiation fails, it shall be submitted to the local people's court for arbitration.
Eight. This contract is made in duplicate, one for each party, and shall come into effect as of the date of signature by both parties. In case of breach of contract, compensate the other party for economic losses.
Party A:
Party B:
date month year