The owner of the unfinished real estate was forced to stop the loan, should the pre-sale system be cancelled? Many experts have different opinions

　　The pre-sale funds of housing companies "evaporated", the unfinished real estate was delivered indefinitely, and the owners demanded forcible suspension of loans... Similar scenes were staged in many cities across the country.

　　Recently, the owners of unfinished buildings in many places across the country jointly issued a statement demanding that the repayment of loans be forcibly stopped until the relevant projects are fully resumed. The cities involved include Zhengzhou, Shangqiu, Xinxiang, Nanyang and Zhoukou in Henan Province, as well as Shanxi, Jiangsu, Jiangxi and Hunan. , Hubei, Guangxi, Shaanxi and other provinces.

Among the properties involved, there are also "net celebrity" properties that have attracted market attention in previous years, and some properties are even "sunlight" when they are on sale.

　　Behind the unfinished business of real estate, what responsibilities should real estate companies and pre-sale fund supervision banks bear?

Is it feasible for the owner to unilaterally request a mandatory loan suspension?

How to protect the interests of owners?

Should the pre-sale system be abolished and replaced with existing home sales?

　　Based on the above questions, Yicai interviewed Chen Sheng, Executive Director of China Real Estate Data Research Center, Wang Yeqiang, Director of Land Economy and Real Estate Research Office, Institute of Urban Development and Environment, Chinese Academy of Social Sciences, and Kuang Weiwei, Director of Urban and Real Estate Research Center, National Development Institute of the National People's Congress. , Lou Jianbo, Director of the Real Estate Law Research Center of Peking University, Cui Guangcan, Professor of the Business School of Shanghai Normal University, Director of the Real Estate and Urban Development Research Center, Luo Xunwen, a partner of Beijing Yingke (Shenzhen) Law Firm, and a partner of Beijing Yunjia Law Firm Zhang Bo and many other real estate experts and practitioners.

Many interviewees believe that in the downturn of the housing market, housing companies have entered the era of "slow turnover", and the capital chain of housing companies is tight. Due to factors such as the epidemic and the impact of prevention and control policies on the resumption of real estate chain companies, housing companies have misappropriated funds and supervision Problems such as inadequacy are gradually exposed.

In the short term, small property owners "forced loan suspension" or take greater risks, and local regulatory authorities need to implement coordination and bottom-up responsibilities; in the longer term, the supervision of pre-sale funds needs to continue to be optimized, and the relief measures for small property owners need to be improved. For example, explore the use of guarantee methods.

Yicai.com: Behind the "forced loan suspension" is the problem of unfinished housing. What are the reasons behind the unfinished housing?

What other reasons trigger the collective suspension of loans by owners?

　　In Cui Guangcan's view, unfinished buildings are a common phenomenon in the development cycle of the real estate industry, and it is also a direct manifestation of the risk spillover of real estate development companies.

　　"The supervision of pre-sale funds is a system design to prevent the misappropriation of project funds and ensure the smooth completion and delivery of project construction. However, in practice, since the main body of real estate project development and construction is real estate enterprises, banks cannot fully supervise project progress and funds. Therefore, when there is a problem in the enterprise, it is generally difficult to ensure the smooth completion and delivery of the project." Cui Guangcan said.

　　Kuang Weiwei said that the delivery risk of real estate companies is not unrelated to the cumulative benefits under the "fast turnaround" model over the past few years.

However, under the "three red lines", the capital turnover of real estate enterprises has slowed down, and the diversified business model of most real estate enterprises will not work. Since the second half of last year, the whole chain of financing, development and sales of real estate enterprises has been cold, and some real estate enterprises There have been acts of misappropriation of funds such as "demolition of the east wall and repair of the west wall", and the risk of delivery has further increased.

　　Lou Jianbo believes that recently, due to the repeated domestic epidemics and the impact of prevention and control policies, the real estate industry is facing more uncertainty in resuming work and production, and the shrinking income has further lowered the risk expectations of owners.

In addition, the "relaxing tide" of property market policies in some areas, the practice of optimizing the supervision policy of pre-sale funds, while increasing the flexibility of the use of pre-sale funds for commercial housing, also objectively brought some inadequacies in supervision.

　　Wang Yeqiang said that the issue of supervision by government departments cannot be ignored either.

On the one hand, the development of housing enterprises needs to be filed with the housing construction department. Therefore, the housing construction department has to supervise the possible risks in the development process of housing enterprises; Housing development, out of guarantee for the bank.

　　Although the problem of unfinished buildings has existed for a long time in many places, it is rare for small owners in many places to jointly initiate a statement requesting forcibly stop loan repayments.

　　Many interviewees believe that there are many factors behind this. For example, under the epidemic situation, the property owners’ ability to pay their debts has increased; frequent thunderstorms in housing companies have affected market confidence. The pressure can only be exerted on banks and so on.

Another reason that triggers the collective suspension of loan rights by small owners may be related to the sporadic judicial practice.

Luo Xunwen said that in previous cases in which banks sued small owners to voluntarily stop loans, there were cases in which local courts and even the Supreme Court ruled that "the risks of unfinished buildings should not be borne by the buyers."

"The court generally judges such cases from the perspective of fairness, because most of the relevant banks involved have some illegal operations."

First Finance and Economics: How much pressure will landlords stop lending to real estate companies?

　　A number of respondents agreed that, because the property owner and the developer signed a house purchase contract, the mortgage loan contract with the bank was unilateral.

Therefore, the owner's suspension of loans has limited "pressure" on real estate enterprises.

　　"It is not advisable for homebuyers to rush to stop repaying the loan, because it will make homebuyers face greater legal risks: they will likely be sued by the bank to hold them accountable for breach of contract, and it will also affect the credit record." Zhang Bo said.

　　Luo Xunwen also holds a similar view.

He further mentioned that on the one hand, before the relevant departments investigate and collect evidence, it is sometimes difficult to obtain sufficient evidence for the owner's accusation of the supervision bank's suspected illegal operation; Waiting for the regulatory authorities to pursue accountability, according to the principle of relativity of contracts, it cannot be a legal reason for the owner not to fulfill the relevant terms of the mortgage loan contract with the bank.

　　Zhang Bo suggested that home buyers should take some more prudent measures and use legal means to protect their rights.

　　There are two specific ways: First, the buyers can send representatives to negotiate with the bank to obtain a deferral of repayment or other favorable results; Litigation, requesting the court to rescind the commercial housing sales contract and rescind the commercial housing secured loan contract.

　　According to Article 20 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Cases of Disputes over Commodity House Sales and Purchase Contracts: Because the commodity house sales contract is confirmed to be invalid or cancelled or rescinded, the purpose of the commercial house guarantee loan contract cannot be realized, and the party requests the cancellation of the commercial house. Guaranteed loan contracts shall be supported.

　　"If the request to rescind the commercial housing secured loan contract can be supported by the court, there will be no need to repay the loan," Zhang Bo said.

　　Then, when the court ruled that "the risks of unfinished buildings should not be borne by the buyers", who will repay the loans issued by the banks?

　　Luo Xunwen said that there are at least two judicial decisions: first, since the developer breached the contract and the house sales contract and the secured loan contract were terminated, the developer should return the house purchase loan collected to the guarantor, that is, the loan bank; second If the court does not make a judgment or the buyer does not propose to terminate the sales contract, the court may decide to suspend the loan in stages, and the loan repayment period will be suspended until the developer delivers the building.

　　However, Luo Xunwen also admitted that

　　Lou Jianbo said that "guaranteing the delivery of buildings" is not only related to the vital interests of the owners, but also affects the economic development and social stability of developers, banks and the location of the real estate.

It is suggested that when there are problems such as suspension of construction and unfinished completion of the real estate, the Quartet will send representatives to negotiate and jointly promote the solution.

"The local government should not 'lay flat' and should participate in the follow-up process throughout the process. For example, the local government can first classify the properties that cannot be delivered on time, which ones are delayed due to the impact of the epidemic, and which ones are real estate companies. A real estate with a broken capital chain and an unfinished end.”

　　Cui Guangcan also believes that solving unfinished buildings that have already occurred and guaranteeing delivery are often related problems. Generally, companies must first rely on self-rescue. Local governments should increase supervision and coordination, solve practical problems, and increase the use of project companies’ funds and normal operations. In appropriate circumstances, the buyer, the project company and the local government can form a joint promotion mechanism to solve the problem in a targeted manner.

Yicai: In order to prevent the occurrence of unfinished buildings, how should the supervision of pre-sale funds be optimized?

　　With the frequent occurrence of unfinished buildings in many places, Chen Sheng believes that this will not only further dampen the confidence of home buyers during the downturn of the property market, but will also have a negative impact on the confidence of enterprises and the government.

　　Kuang Weiwei further analyzed that for real estate companies, when there are problems such as delayed delivery, shutdown or even unfinished business, they need to bear two aspects of financial pressure, one is liquidated damages, and the other is that development loans are also under pressure after sales receipts are blocked. ; And the asset stability of the local financial system will also cause ripples.

　　In February of this year, the national measures for the supervision and management of the pre-sale funds of commercial housing have been issued.

But in Wang Yeqiang's view, the effect of policy implementation is not obvious.

　　"Due to the over-financing of many projects and the misappropriation of pre-sale funds, the cash flow is insufficient to cover the debts. If all creditors come to claim creditor's rights protection, the multi-party game will lead to a stalemate and the funds cannot be moved, which will inevitably lead to unfinished projects or shutdowns." Wang Yeqiang say.

　　Regarding the direction of improving the supervision of pre-sale funds in the future, Wang Yeqiang put forward three suggestions:

First, project pre-sale funds, development loans, and personal mortgage loans for house purchases are all included in the scope of project fund supervision, and tripartite supervision is implemented to ensure that relevant funds are used for project development and construction; second, there is no “one size fits all”, but echelonization The pre-sale supervision is relaxed, and for housing companies with high credit ratings, the proportion of pre-sale funds retained is appropriately reduced; thirdly, on the basis of strictly implementing the pre-sale capital supervision system for commercial housing, explore the use of guarantee methods to allow some high-credit housing companies Part of the regulatory funds will be unfrozen with a bank guarantee, which will be used for the resumption of work and production of this project, and the subsequent sales of commercial housing will need to make up for the withdrawal amount in full.

　　Chen Sheng also suggested exploring the insurance system.

He said that, similar to the credit system of introducing insurance into developer loans, it may be possible to study the purchase of insurance by developers to promote housing sales in third- and fourth-tier cities.

"If there is corresponding insurance for the purchase of a house, then when the housing enterprise cannot deliver normally, there will be a corresponding compensation system to reduce consumer risks, reduce conflicts, and avoid the phenomenon of suspension of payment and loan."

Yicai: Should the pre-sale system be cancelled?

　　Cui Guangcan believes that the pre-sale system is determined by my country's real estate development model and financing model, and is an important part of my country's commercial housing construction supply mechanism. At present, in the absence of new development models and changes in financing models, it is still impossible to simply cancel it across the board. Therefore, it is necessary to From the perspective of long-term system construction, we should improve and gradually adjust this system, and finally establish a new model for the development of the real estate industry to better serve the people's housing.

　　But Kuang Weiwei and Wang Yechao said that in the long run, existing home sales may be explored.

　　Kuang Weiwei said that the pre-sale system was formulated and introduced against the background of the supply of the property market being less than the demand.

At that time, based on the supply and sales situation and the actual purchase demand, home buyers predicted that the future house price would likely show an upward trend, so they were willing to take certain risks of home purchase.

At present, the pre-sale system may no longer be applicable to some third- and fourth-tier cities that are under great pressure to de-escalate. It is recommended to implement the existing home sales system on a pilot basis in these areas.

　　Wang Yechao said that after more than 20 years of rapid development, China's real estate market has now shifted from the incremental market to the stock housing market, and real estate development should pay more attention to the improvement of housing quality.

In the long run, the concentration of the real estate industry will continue to increase, and high-quality real estate companies are expected to gain opportunities to improve performance concentration, while problem housing companies will be cleared.

Under such a trend, the pre-sale system should gradually withdraw from the real estate market.