Section 1 Real Estate Industry
The real estate industry is an industry engaged in real estate investment, development, operation, service and management. According to the Provisions on the Division of Three Industries (2018) by the National Bureau of Statistics, it belongs to the tertiary industry and is a department that serves production and life. The construction industry is a material production sector and belongs to the secondary industry.
In real estate development activities, the real estate industry and the construction industry are often the cooperative relations between Party A and Party B, the real estate industry is the party A of real estate development and construction, and the construction industry is Party B; the real estate industry is the planner, organizer and contract issuing unit, and the construction industry is the contracting unit, which completes the production tasks of land development and housing construction such as infrastructure construction and site leveling in accordance with the requirements of the contracting contract.
First, the basic concept
(1) Land and houses
1. Land
(1) Land is the plot carrying the building, that is, the material carrier of real estate development activities, and is the basic "raw material" and "production factor";
(2) Land inclusion
(1) Surface range: confirm the "boundary" with the planar boundary site map or the land red line map, and calculate its horizontal projection area;
(2) The scope of above-ground space: limited to the height of utilization;
(3) The scope of underground space: limited to human capabilities.
(3) According to the degree of development, it is divided into undeveloped land and developed land.
2. Houses
(1) Housing: an architectural space for people to carry out production, life and other activities inside. For example: houses, shops, office buildings, hotels, factories, warehouses, etc.
(2) Structures: Engineering entities or auxiliary building facilities in which people generally do not directly carry out production, living and other activities. For example: chimneys, water towers, walls, roads, bridges, etc.
(3) In the Urban Real Estate Management Law, housing is defined as: house refers to buildings and structures such as houses on land.
Buildings in the broad sense include houses and structures, and buildings in the narrow sense refer to houses.
(2) Real estate
Real estate is both an objectively existing material form and a legal right.
1. Material form (also known as immovable property)
An umbrella term for property and real estate, including land and permanent buildings on the land and the rights derived from them.
(1) Rights to various houses and their derivatives, including residential shops, factories, warehouses and office buildings and derivative rights thereof;
(2) Land and a certain amount of space under it and its derivative rights, including various underground infrastructure, surface roads, etc. and their derivative rights.
2. Legal Rights
The essence of real estate in the legal sense is a kind of property right, which refers to the various economic interests contained in the real estate entity and the various rights formed from it, such as ownership, use rights, mortgage rights, easements, residence rights, etc.
【Essence】 The right to dispose
(3) Real estate industry
According to the Classification of National Economic Industries GB/T 4754-2017, the real estate industry includes real estate development and operation, property management, real estate intermediary services, real estate leasing operations and other real estate industries.
1. Real estate development and operation
Real estate developers are mainly organizers and decision makers, combining funds, relevant professional service personnel and institutions, construction contractors, etc. to complete real estate development and operation activities.
Main Business:
(1) Development of housing, infrastructure construction, etc.;
(2) Real estate development projects or sale of houses, etc.
Features: single-piece, large investment, long cycle, high risk, high rate of return, high added value, high industrial relevance, strong driving force.
The income of real estate development enterprises has discontinuities.
2. Property Management (Services)
Property management refers to the activities of property service enterprises to repair, maintain and manage houses and supporting facilities and equipment and related sites in accordance with the contract, and maintain environmental sanitation and related order.
The objects of property management are mainly all kinds of houses that have been built and put into use after completion acceptance, as well as supporting facilities and equipment and related sites.
In addition to maintenance, maintenance and management, property service enterprises should also maintain environmental health and related order in the property management area and provide related services.
【Keywords】Custodian, service person
3. Real estate agency services
Real estate intermediary services refer to real estate consulting, real estate price appraisal, real estate brokerage and other activities.
Real estate intermediary services are an indispensable part of the real estate market value chain, and there are different formats of real estate intermediary services in the primary, secondary and tertiary markets... It plays an important role in promoting the healthy development of the real estate market, ensuring the safety of real estate transactions, and saving real estate transaction costs.
For example, real estate brokerage is the lubricant of the real estate market
(1) Real estate consulting
Main business: to provide legal, policy, information, technology and other aspects of consultancy services for clients.
For example: real estate market research, real estate investment project feasibility study, real estate development project planning, etc.
At present, the real estate consulting business is mainly undertaken by real estate appraisers, real estate agents, as well as real estate valuation agencies and brokerage agencies.
(2) Real estate valuation
Main business: analyze, measure and judge the value of real estate and put forward relevant professional opinions.
For example, it provides a value reference basis for the transfer, transfer and sale and purchase of real estate, mortgage, expropriation compensation, loss compensation, taxation, etc.
(3) Real estate brokerage industry
Main business: for real estate transferors, lessors to find buyers, lessees;
For those who are willing to buy and rent, find a suitable listing.
4. Real estate leasing operation
Real estate leasing operation refers to the for-profit real estate leasing activities of various units and residents, as well as non-profit leasing services provided by real estate management departments, enterprises, public institutions and institutions, including land use right leasing services, affordable housing rental services, non-housing rental services, housing rental services, etc.
At present, non-housing rental services, housing rental services and other market-oriented housing rental operation services are mainly provided by real estate development enterprises, real estate brokerage agencies, and Internet platform enterprises to set up housing rental enterprises.
2. Real estate rights
(1) Ownership
1. Land ownership
Article 2 of the Land Administration Law stipulates: "The People's Republic of China implements socialist public ownership of land, that is, ownership by the whole people and collective ownership by the working masses. ”
(1) State-owned land
Land owned by the whole people is called state-owned land, referred to as state-owned land, and its ownership is exercised by the State Council on behalf of the state.
According to the Civil Code, urban land is owned by the State;
(2) Collective land
Land in rural areas and on the outskirts of cities is collectively owned, except as provided for by law by the State;
Mineral deposits, water flows, forests, mountains, grasslands, wastelands, tidal flats and other natural resources are owned by the State, that is, by the whole people; except for forests and mountains, grasslands, wastelands and tidal flats that are collectively owned by law.
2. Home ownership
Refers to the right of the owner of the house to monopolize all the houses owned by him. Home ownership is an absolute right, that is, the right holder does not need the assistance of others to directly realize his own power. It is possible to exclude the interference of others and exercise the powers of possession (control), use (utilization), income (acquisition of benefits), and disposal (core) of all their houses.
Ownership of a home may be mortgaged, but not pledged.
【Expansion】Pledges include movable property pledges and rights pledges.
The latter include securities, intellectual property rights, general claims, etc.
The Civil Code specifically provides for a form of ownership of immovable property: the owner's buildings are differentiated in ownership.
【Related】Chapter 9 Property Management System, Regulations and Policies
It refers to the combination of the owner's ownership of his own exclusive part of the building, the common right to the common part and the management right arising from the common relationship.
The three are inseparable, and when the ownership of the exclusive part is transferred, the common right to the common part and the joint management right of the common part are transferred at the same time.
(b) usufructuary rights
It means that the owner of the usufructuary right enjoys the right to possess, use and benefit from other persons in accordance with the law. The usufructuary right is a right established in immovable or movable property owned by others for the purpose of use and income, so it is called a "usufruct" property right and belongs to other property rights. The usufructuary rights of land and housing mainly include: the right to land contract management, the right to use construction land, the right to use residential land, the right of residence and the easement.
[Essence] Other things, that is, the things of others, are owned by others, and the core of ownership is missing - the right to dispose
1. The right to land contract management
Refers to the right holder of the right to land contractual management to occupy, use and benefit from the cultivated land, forest land, grassland, etc. contracted by it in accordance with the law, and has the right to engage in agricultural production such as planting, forestry and animal husbandry.
2. The right to use land for construction purposes
(1) The right to use state-owned construction land
It refers to the right of citizens, legal persons and other economic organizations to use state-owned land in accordance with law for non-agricultural construction.
【Related】Chapter II Construction Land Management System, Laws and Regulations
Regarding the methods and characteristics of providing the right to use state-owned construction land: transfer or allocation...
Regarding the method and duration of the transfer of the right to use state-owned construction land: bidding, auctioning, listing, agreement...
Regarding the circulation of the right to use state-owned construction land: transfer ...
(2) The right to use collective construction land
It refers to the right of peasant collectives and individuals to carry out non-agricultural production and construction and use collectively owned land in accordance with law.
The Third Plenary Session of the Eighteenth Central Committee of the Communist Party of China proposed to speed up the establishment of a unified urban and rural construction land market, and under the premise of conforming to planning and use control, allow rural collective management of construction land to be transferred, leased, and invested in shares, and implement the same market entry and the same rights and the same price as state-owned land. At the same time, we will reform the rural homestead system, select a number of pilots, and prudently and steadily promote the mortgage, guarantee, and transfer of peasants' housing property rights.
Article 63 of the Land Administration Law, as amended in 2019, stipulates that for collective operation construction land such as industrial and commercial use in the overall land use plan and urban and rural planning, and which has been registered in accordance with law, the land owner may hand it over to the unit or individual for use by means of transfer, lease, etc., and shall sign a written contract specifying the land boundary site, area, construction period, use period, land use, planning conditions and other rights and obligations of both parties.
【Association】Implement the same market entry as state-owned land, the same rights and the same price
The transfer, leasing, etc. of collective operation construction land shall be subject to the consent of more than two-thirds of the members of the villagers' meeting of the members of the collective economic organization or more than two-thirds of the villagers' representatives.
The right to use land for collective operation construction purposes acquired through transfer or other means may be transferred, exchanged, capital contributed, donated or mortgaged, except as otherwise provided by laws or administrative regulations or otherwise agreed in the written contract signed by the land owner or the land use right holder.
【Essence】In principle, it can be re-circulated
3. The right to use the homestead
Refers to the collective land use right that has not been restricted by the rural collective economic organization to its members for the construction of housing after examination and approval in accordance with law.
In September 2019, the Office of the Central Rural Work Leading Group and the Ministry of Agriculture and Rural Affairs issued the Notice on Further Strengthening the Management of Rural Homesteads. It is necessary to strictly implement the "one household and one house" regulation, rural villagers can only own one homestead per household, the area must not exceed the standards stipulated by the province, autonomous region, and municipality directly under the Central Government, and it is strictly forbidden for urban residents to purchase homestead land.
【Essence】Reform the rural homestead system and select a number of pilots
4. Right of Abode
It means that the holder of the right of residence shall enjoy the right to possess and use all or part of the dwelling and its ancillary facilities owned by others in accordance with the law to meet the needs of living and living.
The right of residence can be established according to a will or bequest, or in accordance with the contract.
[For example] A person states in a will that his home is inherited by his son, but should be inhabited by a nanny who has served for many years until the nanny dies.
To establish the right of residence, the right of residence shall be registered with the real estate registration agency where the house is located, and the right of residence shall be established after registration. The right of abode shall not be transferred or inherited.
5. Easement
Refers to the right to use the immovable property of others in accordance with the contract in order to improve the efficiency of one's own immovable property. The immovable property of others is the easement, and the real estate of oneself is the enlistment.
The Civil Code stipulates that the parties shall conclude the easement contract in writing... Where the parties request registration, they may apply to the registration authority for the registration of the easement; without registration, they may not confront a bona fide third party.
"Good faith" means that when a third party believes without fault that there is no easement on the easement, the owner of the easement cannot claim the easement against it unless the easement in question has been registered. The easement has a subordinate nature, is inseparable from the easement, and cannot be transferred or mortgaged separately.
(3) Security interests
Refers to the property right created to ensure the realization of the claim, which is a right that directly acquires or dominates the exchange value of a specific property, and is another property right juxtaposed with the usufructuary right.
The obligee shall enjoy the right of priority in repayment of the secured property in accordance with law in the event that the debtor fails to perform the obligation as due or in the event of the realization of the security interest as agreed by the parties.
【Comparison】General claims and (secured) property rights
General claims: not exclusive (several claims are equal), not recourse (letting others lose their security nature)
Security interest: with priority. 【Related】Chapter VI Real Estate Transaction Management System, Regulations and Policies
Third, the historical evolution of the real estate industry
(1) Before reform and opening up
1. From 1949 to 1955, the main work of the government at this stage was to stabilize the order of urban real estate;
2. From 1956 to 1965, at this stage, the main position of socialist public ownership in urban real estate was established;
3. From 1966 to 1978, during the "ten years of turmoil", the construction and management of urban real estate stagnated and suffered damage.
(2) After reform and opening up
1. In December 1978, after the Third Plenary Session of the Eleventh Central Committee of the Communist Party of China was convened, the reform of the urban housing system, the reform of the urban land use system and the reform of the real estate production mode were carried out in the cities;
2. On October 25, 1987, the 13th National Congress of the Communist Party of China proposed the establishment of a real estate market for the first time in the history of China's socialist economic development, established the status of the real estate market, and announced the birth of China's socialist real estate market.
3. On August 12, 2003, the State Council issued the Notice of the State Council on Promoting the Sustained and Healthy Development of the Real Estate Market. It is necessary to fully understand the importance of the sustainable and healthy development of the real estate market...
(3) Since the 18th Party Congress
1. Propose to establish a long-term mechanism to promote the stable and healthy development of the real estate market, adjust and optimize the medium- and long-term supply system, and achieve dynamic equilibrium in the real estate market.
2. Adhere to the positioning of "the house is used to live, not to speculate", adhere to the residential attributes of housing, and establish and improve the housing system of renting and purchasing at the same time.
3. The Fifth Plenary Session of the Nineteenth Central Committee of the Communist Party of China proposed that during the "Fourteenth Five-Year Plan" period, it is necessary to accelerate the construction of a new development pattern with the domestic cycle as the main body and the domestic and international dual cycles promoting each other.
4. Adapt to local conditions, adopt multiple strategies at the same time, and implement precise policies to effectively prevent and resolve real estate market risks.