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.
If the mortgagor leases the mortgaged property, the lease contract will 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.
The owner rents out the mortgaged house. If the lessor fails to inform the lessee in writing that the house has been mortgaged, the mortgagor (usually also the lessor) shall be liable for the losses caused to the lessee by renting the mortgaged property. 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 interests of the state and notifies the lessee in writing without the mortgagee's consent, the lease behavior will be invalid because it harms the interests of the state (the Civil Code (the effective number is 202 1. 1.65438) expressly 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 Civil Code (202 1. 1 Effective), the lessor is generally responsible for the 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 Civil Code of Housing Lease (202 1. 1 came into force).
Article 703 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 704 The contents of a lease contract generally include terms such as the name, quantity, purpose, lease term, rent, payment term and method, and maintenance of the lease item.
Article 705 The lease term shall not exceed 20 years. More than twenty years, the excess is invalid.
At the expiration of the lease term, the parties may renew the lease contract; However, the agreed lease term shall not exceed twenty years from the date of renewal.
Article 706 Failure of the parties to go through the formalities of registration and filing of the lease contract in accordance with the provisions of laws and administrative regulations shall not affect the validity of the contract.
Article 707 Where the lease term is more than six months, it shall be in written form. If the parties fail to determine the lease term in writing, it shall be regarded as an indefinite lease.
Article 708 The lessor shall deliver the lease item to the lessee in accordance with the contract, and keep the lease item in line with the agreed purpose during the lease period.
The lessee's obligation to use the lease item in accordance with the agreement; The lessee shall use the lease item in the agreed manner. If the method of using the lease item is not prescribed or clearly prescribed, and cannot be determined according to the provisions of Article 510 of this Law, it shall be used according to the nature of the lease item.
Article 710 The lessee's exemption obligation for using the lease item in accordance with the agreement; If the lessee uses the lease item in the agreed way or in the nature of the lease item, causing losses to the lease item, it shall not be liable for compensation.
Article 711 Liability of the Lessor for Failure to Use the Leased Item in accordance with the Contract. If the lessee fails to use the lease item in the agreed manner or the nature of the lease item, thus causing losses to the lease item, the lessor may terminate the contract and demand compensation for the losses.
Article 712 The lessor shall perform the maintenance obligations of the lease item, unless otherwise agreed by the parties.
Article 713 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.
If the lease item needs maintenance due to the fault of the lessee, the lessor shall not undertake the maintenance obligation specified in the preceding paragraph.
Article 714 The lessee shall take good care of the lease item, and shall be liable for compensation if the lease item is damaged or lost due to improper care.
Article 715 The lessee may, with the consent of the lessor, improve or add other contents to 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 716 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; If a third party causes losses to the lease item, the lessee shall compensate for the losses.
If the lessee sublets without the consent of the lessor, the lessor may terminate the contract.
Article 717 Where the lessee subleases the lease item to a third person with the consent of the lessor, the agreement that the lease term has expired is not legally binding on the lessor, unless otherwise agreed by the lessor and the lessee.
Article 718 Presumption that the lessor agrees to sublease. If the lessor knows or should know that the lessee subleases, but fails to raise an objection within six months, it shall be deemed that the lessor agrees to sublease.
Article 719 Where the lessee fails to pay the rent, the sublease may pay the rent owed and liquidated damages on its behalf, except that the sublease contract is not legally binding on the lessor.
The rent and liquidated damages paid by the sublessor can offset the rent that the sublessor should pay to the lessee; If it exceeds the amount of rent payable, it may claim compensation from the lessee.
Article 720 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 721 The lessee shall pay the rent at the agreed time limit. If the time limit for paying the rent is not stipulated or clearly stipulated and cannot be determined according to the provisions of Article 510 of this Law, if the lease period is less than one year, it shall be paid at the expiration of the lease period; If the lease term exceeds one year, it will be paid annually; if the remaining term is less than one year, it will be paid at the expiration of the lease term.
Article 722 Legal Consequences of the Lessee's Breach of the Obligation to Pay Rent If the Lessee fails to pay or delays the payment of 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 723 Where the lessee is unable to use or benefit from the right claimed by a third party, the lessee may request to reduce the rent or not pay the rent.
Where a third party claims rights, the lessee shall promptly notify the lessor.
Article 724 The lessee may terminate the contract under any of the following circumstances. If the lease item cannot be used for reasons other than the lessee's, the lessee may terminate the contract:
(1) The leased property is sealed up or detained by judicial organs or administrative organs according to law;
(2) The lease right is disputed;
(3) The leased property violates the mandatory provisions of laws and administrative regulations on the conditions of use.
Article 725 the change of ownership is unbreakable. According to the lease contract, if the ownership of the leased property changes during the lessee's possession, the validity of the lease contract will not be affected.
Article 726 Where the lessor sells the leased house, it shall notify the lessee within a reasonable period before the sale, and the lessee shall enjoy the preemptive right under the same conditions; Except that the house is preempted by the owner or the lessor sells the house to a close relative.
After the lessor performs the notification obligation, if the lessee fails to explicitly express the purchase within fifteen days, it shall be deemed that the lessee has waived the preemptive right.
Article 727 Where the lessor entrusts the auctioneer to auction the leased house, it shall notify the lessee five days before the auction. If the lessee fails to participate in the auction, it shall be deemed as giving up the preemptive right.
Article 728 the legal consequences of infringement of the lessee's preemptive right; If the lessor fails to notify the lessee or there are other circumstances that prevent the lessee from exercising the preemptive right, the lessee may request the lessor to bear the liability for compensation. But it does not affect the validity of the house sales contract concluded between the lessor and the third party.
Article 729 Where part or all of 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 to 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 730 If the lease term is not prescribed or clearly prescribed, or if the lease term is not prescribed or clearly prescribed by the parties, and cannot be determined according to the provisions of Article 510 of this Law, it shall be regarded as an indefinite lease; The parties may terminate the contract at any time, but shall notify the other party before a reasonable period.
Article 731 Where the quality of the lease item is unqualified, the lessee has the right to terminate the lease item. If the lease item endangers the safety or health of the lessee, the lessee may terminate the contract at any time, even if the lessee knows that the quality of the lease item is unqualified when concluding the contract.
Article 732 Handling of the Lease Relationship of the Death of the Tenant of a House If the Tenant dies within the lease term, the person who lived with him or the business operator who lived with him before his death may rent the house according to the original lease contract.
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