Procedures of Shanghai Municipality on the Transfer of Real Estates
Procedures of Shanghai Municipality on the Transfer of Real Estates
Procedures of Shanghai Municipality on the Transfer of Real Estates
Decree No.42 of the Shanghai Municipal People's Government
April 30,1997
Chapter I Genera1Provtsions
Article 1 Purpose and Basis
With the view to standardizing the act of transferring real estate, protecting the legitimate right and interests of the transferor and transferee of the party and other relate person(s), and maintaining the normal order of the real estate market, these Procedures are formulated in accordance with the provisions of the Law of the People's Republic of China on Urban Real Estate Administration, the Law of the People's Republic of China on Land Administration as well as other laws and regulations, and in the light of the actual circumstances of this Municipality.
Article 2 Scope of Application
These Procedures apply to the transfer of real estate within the administrative areas of this Municipality.
Article 3 Definition
The real estate transfer mentioned in these Procedures refers to the act of a real estate right owner of transferring the title of his or her legally owned real estate to other person(s).
The real estate right owner mentioned in the preceding paragraph refers to a natural person, 1egal person or other organization that legally owns the ownership of a house and /or the land-use right.
Article 4 Administrative Department
The Shanghai Municipal Housing and Land Resources Administration (hereinafter referred to as the Municipal Housing and Land Resources Administration) is the competent administrative authorities in charge of real estate transfer in this Municipality. The district or county real estate administrative department is in charge of the administrative work of real estate transfer within its jurisdiction, professionally it is under the leadership of the Municipal Housing and Land Resources Administration.
The administrative organs of real estate transactions under the Municipal Housing and Land Resources Administration and the district or county real estate administrative department are respectively in charge of the specific administrative work for ownership transfer formalities of the real estate transfer in accordance with the relevant regulations of Municipal People's Government
The administrative departments of finance, tax, price conto1, industry and commerce, planning, and residential construction shall work in coordination with each other to implement these Procedures according to their own responsibilities.
Article 5 Principal of Transfer
Real estate transfer shall follow the principle of voluntaries, fairness and honesty.
Article 6 Modes of Transfer
The modes of real estate transfer are as fo11ows:
1.Purchase and sell;
2.Exchange;
3.Gift;
4.Payment of debt with real estate;
5.Real estate right transferred when the real estate is appraised at a certain value to be used as capital investment or as a condition of cooperation for the owner to form a corporate legal person with another person or enterprise;
6.Real estate rights transferred as assets of the enterprises through merge or consolidation of these enterprises; and
7.Other modes permitted by laws, regulations and rules.
Chapter II General Rules
Section I Scope and Conditions of Transfer
Article 7 The Parties to the Transfer
Only the owner(s) of real estate rights, who has (have) acquired the certificate of real estate rights after registration in accordance with law, shall be the transferor of the real estate.
The transferee of real estate may be any natural person, or legal person, or other organization, within or outside the People's Republic of China, except those otherwise provided by laws, regulations, or rules, or those otherwise stipu1ated by contract(s) of land-use right.
Article 8 Real Estate Being not Permitted to be Transferred
Real estate is not permitted to be transferred under any of the following circumstances:
1.Not having acquired the certificate of real estate right through registration in accordance with law;
2.Being jointly owned real estate without written consent of other joint owners;
3.Having real estate rights in dispute, still in the process of litigation, arbitration or administrative settlement;
4.Real estate being sealed up, or real estate rights being restricted in other forms by a ruling or decision made by judicial organ or administrative department in accordance with law;
5.Land-use right being revoked according to law; or
6.Other circumstances where transfer of real estate is not permitted by laws and regulations.
Article 9 Conditions for Transfer of Houses Built on State-owned Land
If it is necessary to transfer with legal effect the ownership of a house that is built on a tract of land, the right of use of which is owned by the State, the transfer shall be done by going through all formalities of transfer of real estate rights provided by these Procedures, only after having registered the ownership of the house and the land-use right of the area occupied by the house, as well as having acquired the certificate of ownership of real estate right.
Article 10 Conditions for the Transfer of Right of Use of State-owned Land for Mass Development
If the land-use right of a tract of state-owned land acquired by way of granting is to be used for development and construction and the land-use right of this tract of state-owned land needs to be transferred, the following conditions shall be met:
1.The granting fee for land-use right is fully paid in accordance with provisions of laws and certificate of right of ownership of real estate is acquired;
2.The land-use right is already registered in accordance with provisions of laws and certificates of right of ownership of real estate is acquired;
3.The land that needs to be transferred has already evolved the conditions for industrial use or other construction use;
4.The planning administrative department has already axed the nature of planned use and planned technical parameters of the land that needs to be transferred; and
5.Other conditions stipulated by the granting contact.
If the land-use right of the tract state-owned land acquired through allocation for development and construction needs to be transferred, the conditions listed in Item 2,3and 4of the preceding Paragraph shall be met, and the transfer it shall be reported to the Municipal People's Government for approval.
Article 11 Definition for Transferring the Real Estate on Granted State-owned Land
In the case where the land-use right of a tract of state-owned land is acquired by way of granting, when the real estate is to be transferred, the right and obligations stipulated in the granting contact shall be transferred at the same time together with the transfer of the real estate.
Article 12 Restriction on Transferring the Real Estate on the Allocated State-owned Land
In the case where the land-use right of a tract of State-owned land is acquired by way of allocation, when the real estate is to be transferred, the transferee shall go through the procedures of granting land-use right and pay the granting fee for the land-use right; if according to the relevant provisions of laws, regulations and rules, the procedures of granting land-use right is not necessary, the transferor shall turn over to the state that part of profit gained from the land out of the profit gained from the transfer of the real estate.
The specific procedures for turning over the profit gained from the land shall be formulated separately by the Municipal People's Government according to the stipulations of the State Council.
Article 13 Conditions of the Transfer of House on Collectively owned Land
If a house built on the collectively owned land needs to be transferred, the following conditions shall be met:
1.The ownership of the house and the land-use right of the land occupied by the house are registered in accordance with law and the certificate of the ownership of the real estate is obtained;
2.The transferee of the transferred residential house shall be a person who meets the condition for residential house construction application within the area of the township in which the home is located; the transferee of the transferred non-residential house shall be a collective economic organization or a self employed worker within the area of the town in which the house is located; and
3.The application for transferring the residential house has been approved by the people's government of the township in which the house in located.
If the house built on collectively-owned land needs to be transferred to the transferee other than those stipulated in Item 2 of the preceding paragraph, the transfer procedures can be made according to the provisions of these Procedures only after the requisition procedure of the collectively-owned land has been made according to law.
Article 14 Priority for Purchasing Red Estate
When jointly owned real estate is to be sold, the joint owner of the real estate has the preemptive right under the same conditions.
When rented real estate is to be sold, the tenant has the preemptive right under the same conditions.
Section II Transfer Procedure
Article 15 Conclusion of Transfer Contact
When transferring real estate, the parties to the transfer shall make a contract for the real estate transfer with the exception listed in Item 5 and 6 of Article 6 of these Procedures.
Article 16 Main Contents of Transfer Contract
Contracts for real estate transfer include contract for buying and selling, exchange contract, contract for paying debt and contract for gift.
Contract for buying and selling real estate shall state the following main contents:
1.Name and address of the domicile (or of place of business) of the parties to the transfer;
2.Location, area and the four boundaries of the real estate;
3.Nature of land ownership;
4.Mode of acquisition and time limit of land-use right;
5.Nature of real estate's p1anned use;
6.Plane layout, structure, construction quality, decoration standard, attached facilities and accessory facilities of the house;
7.Price, terms of payment and tune limit of the real estate transfer;
8.Delivery date of the real estate;
9.Liabilities for breach of contract;
10.Method of dispute settlement; and
11.Other matter agreed upon by the parties is the transfer contract.
Apart from the items stipulated above in the preceding paragraph, the exchange contract for real estate shall state the-price difference of the exchange; contract for paying debt with real estate, while meeting the above stipulations, shall state the offset debt and its amount.
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