Shanghai foreign real estate lawyers“ interpretation of ”eight items" of Foreign Housing leasing

More and more Hong Kong, Macao and Taiwan, as well as foreign people, companies and organizations, are doing business, working, studying and living in Shanghai, an international metropolis, through house leasing. Therefore, foreign housing leasing (hereinafter referred to as foreign leasing) has attracted more and more attention. From the perspective of law, there are various forms of foreign-related leasing. This paper only talks about eight issues that should be paid attention to in the domestic situation of the leased houses, which are the subject of the leasing for Hong Kong, Macao and Taiwan, foreigners, stateless persons, foreign legal persons or other organizations.

Investigation work is indispensable

Cause of action: a Taiwanese man rented a shop on Huaihai Road, signed a lease contract and opened a clothing store. When the business became prosperous, he suddenly received a court notice. The original lessor is the second landlord. The big landlord asked to terminate the lease contract with the second landlord when he knew about the sublease. Therefore, the court asked the Taiwanese boss to take part in the lawsuit as a third party without independent claim right, and he regretted.

It is the so-called "sharpening a knife does not make mistakes in cutting firewood". Before signing a foreign leasing contract, we must pay attention to the investigation work, otherwise we will lose. The investigation can be carried out from the following two aspects:

1、 Subject investigation

1. The lessee can determine whether the lessor has the qualification of leasing by checking the real estate certificate and corresponding identity documents. If the lessor is not the owner of the house, the lessee must obtain the written proof of the consent of the owner of the house to sublease to avoid the risk of the sublease contract being terminated in the future.

2. If the lessee is a foreign institution or other organization, the lessor may go to the industrial and commercial department or other relevant departments to investigate and verify whether the institution or organization exists, so as to prevent the signing of a contract with a false institution, which fails the purpose of the contract and loses other opportunity costs.

2、 Object investigation

1. The lessee shall, according to the purpose of the leased house, investigate the use of the house and the use of the land. If it is not for residential use, it is necessary to ensure that the leased house type is commercial house and the land use is non residential. Otherwise, the business license cannot be issued and the purpose of the contract cannot be realized.

2. It is suggested that the lessee should go to the real estate transaction center to investigate whether there is mortgage, pawn and other situations in the house. It is better not to rent the houses with limited ownership.

3. Check whether there is lease registration information in the house. If it exists, it will lead to the new lease contract can not go through the registration procedures, resulting in the new lease relationship can not fight against the third party, will also affect the new lessee business license, and ultimately affect the realization of the purpose of the contract.

Pay attention to the details

3、 Case concerning the identity of the foreign party

Cause of action: Mr. Zhang hung a house in a Pudong District on the Internet for rent, and soon came to a "foreigner" tenant. Mr. Zhang, who was full of novelty, soon signed a house lease contract with the foreigner. What I never thought of was that when it was time to pay the rent, there was no movement from foreigners. At this time, Mr. Zhang found that he didn't keep the foreigner's identity card, and even forgot to ask where the foreigner's work unit was.

As the saying goes: a fall brings a gain. I hereby remind that when signing the lease contract, we should copy and retain each other's identity documents, and register the lease contract with the local police station. If the lessee is an individual, it shall check and copy its passport and visa, and pay attention to whether the time allowed to stay in China is longer than or equal to the lease term to be signed. Among them, Hong Kong and Macao residents shall submit their mainland travel passes; Taiwan residents shall submit their mainland travel passes. For enterprises, it is better to check and retain the notarized or certified enterprise registration certificate, business license, etc.

In addition, the lessee is a natural person, it is better to be able to find out its work unit and address. In the future, in case of any of the above situations, the lessor may send a Dunning notice to the lessee's work unit, and may as well directly visit the unit at the door if necessary. After all, "a monk can't run a temple after he runs away", maybe we can find the whereabouts of the lessee through the work unit. Otherwise, it is likely to face the same embarrassment as Mr. Zhang.

4、 In view of the fact that there are more foreign leasing contracts registered and filed than non foreign leasing contracts, it is better to use the Chinese translated name or name of the foreign party when signing the foreign leasing contract.

China's current laws have not explicitly stipulated that when a foreign party applies for housing ownership registration or lease registration in the mainland of China, the name of the party concerned shall be in foreign language or Chinese, and the handling methods of each administrative organ are different; however, if each party uses its native language, in addition to the problems in writing and printing of the registration organ, the computer system will have difficulties in searching and identifying. Therefore, the real estate ownership registration authority generally uses its Chinese transliteration registration, and records its mother tongue name or name in the registration document, and marks it in the note column of the ownership certificate. Therefore, when signing a foreign leasing contract, if the foreign party has the corresponding Chinese name or name, it is better to use the name or name, so as to facilitate the smooth progress of the contract registration and filing.

5、 Decoration problems.

Generally speaking, the foreign leasing term is long, and the foreign lessee often likes to decorate according to their own customs, preferences and styles. Therefore, it is suggested that the lessee should carry out the decoration on the premise of obtaining the consent of the lessor, which also conforms to the provisions of Article 232 of the contract law. In addition, the standard, scheme and drawing of decoration shall be agreed by the lessor and clearly agreed in the contract; secondly, it shall be clearly agreed in the contract on the treatment of decoration after the expiration of the lease term, whether to restore to the original state or to compensate for the discount; finally, for the lessee who operates the lessee's shop, since there is no actual operation during the decoration period, it is better to agree in the contract on "rent free decoration" Repair period ", specify the start and end time of the decoration period and the specific fees exempted from payment, etc.

Six, the language of the contract text.

Ms. Zheng let her house to an Englishman. First signed the Chinese version of the lease contract, and then signed the English version. Recently, the two sides have been displeased because of the difference between an "or" and an "and". In the Chinese version of the contract, "or" is used for the selection relationship; in the English version, the corresponding part of the contract is translated into "and" and "which becomes a parallel relationship. Ms. Zheng said that the Chinese version of the contract should prevail, because it happened in China; the British think that the English version should prevail, because he is British, and English is the world language, so the two sides can not dispute about it.

The author suggests that if a contract is concluded in more than two languages, the parties should be able to agree that the texts in different languages have the same effect and have the same meaning for the words and sentences used in each text. When the words and sentences used in each text are inconsistent, it is better to agree on the standards and methods of interpretation, or the agreement is subject to the text of a certain language. When Ms. Zheng was able to consider the issue of language differences in advance when signing the contract, she clearly agreed in the contract that the Chinese version should prevail, so no similar problem would occur.

7、 Contract registration and filing.

Cause of action: Mr. Wang rented the house to Miss Zhao first, but Miss Zhao didn't move in at once for various reasons. After the rent rose, Mr. Wang rented the house to a foreigner. The foreigner asked Mr. Wang to register the lease contract and live in it. When Miss Zhao learned about this, she thought she wanted to rent first and asked the foreigner to move away. The foreigner refused, and the three parties fell into a deadlock.

Can Miss Zhao's claim be supported? The answer is No. According to the contract law and its interpretation, whether the contract is registered or not is not a necessary condition for the effectiveness of the contract. Article 15 of the regulations of Shanghai Municipality on housing lease stipulates that a housing lease contract that has not been registered and filed shall not be against a third party. Although Miss Zhao rented the house first, the lease contract between her and Mr. Wang could not compete with the recorded one between Mr. Wang and the foreigner. Of course, Miss Zhao can claim responsibility for breach of contract from Mr. Wang.

Therefore, in order to protect the legitimate rights and interests of both parties, especially the lessee, it is necessary to timely register and record after signing the house lease contract. In addition, if the lessee operates, it should register in time, because the industrial and commercial departments require the lease contract to be registered in the lease when they handle the business license.

8、 Court jurisdiction and application of law.

The jurisdiction of foreign-related civil litigation refers to the scope of a country's courts accepting foreign-related civil cases. If the subject matter of a lawsuit brought against a defendant who has no domicile within the territory of the people's Republic of China is within the territory of the people's Republic of China due to a dispute over a lease contract, it shall be under the jurisdiction of the court where the house is located. According to the law of our country, the land, the buildings attached to the land and other fixed objects and the fixed auxiliary equipment of the buildings are real estate. The civil relations of the ownership, sale, lease, mortgage and use of the real estate should be governed by the law of the place where the real estate is located, that is to say, the provisions of the Chinese law should be applied to solve the leasing disputes, but this is based on the premise of China's prosecution. If the foreign citizen or legal person brings a lawsuit against the Chinese citizen in a foreign country, it is inevitable that whether the foreign court has jurisdiction and which country's law is applicable. Moreover, in responding to the lawsuit in a foreign country, the difficulty of the lawsuit cost, judgment execution and other issues can be imagined. Therefore, it is clearly stipulated in the lease contract to exclude the jurisdiction of foreign courts and the application of foreign laws in order to avoid troubles.