The drafting notes of the Regulations indicate that Chapter * * * of the Regulations 122 includes: general provisions, real estate registration books and real estate registration certificates, registration procedures, registration of real estate rights and other registrations (general provisions, registration of ownership usufructuary rights, mortgage registration, correction registration, objection registration, advance notice registration, seizure registration), management and utilization of real estate registration materials, and laws.
The main contents involve real estate registration purpose, concept, registration object, registration right type, registration procedure, registration data management and utilization, legal responsibility and many other aspects.
The "Regulations" said:
1, This Regulation stipulates the right to use sea areas, the right to use islands, the right to use forest land and the ownership of forest trees, thus fundamentally confirming the real right status of real estate such as sea areas and forest rights.
2. Make it clear that Shenzhen Real Estate Registration Center has the qualification of registration subject for all kinds of real estate registration such as land, houses, forest land and sea area, and confirm the legal status of Shenzhen Real Estate Registration Center.
3. Introduce a third-party review agency to make it clear that the applicant can entrust a notary public or a lawyer with the qualification of a testator to investigate or verify the legal facts involved in the registration when handling the transfer registration of inheritance rights.
4. According to the Regulations, if the mortgage registration has been established for the house applying for residence registration, the owner of the house shall notify the mortgagee.
5. The "Regulations" cancelled the mortgage of uncompleted flats, and registered the pre-sale mortgage of commercial housing in accordance with the national system.
6. By means of advance notice registration, it is restricted that the urban renewal projects that have signed the relocation compensation agreement cannot be transferred, mortgaged or changed, so as to avoid one room and two purchases and disrupt the order of the renewal market.
The "Regulations" further refine the procedures for advance notice registration of relocation compensation agreements, and clarify that in addition to updating, relocation compensation agreements signed by projects such as land preparation and renovation of old residential areas can also be registered in advance notice.
7. Require registration agencies to further strengthen information sharing, continuously apply for registration information platform, and realize online mortgage and seizure as soon as possible.
8. These Regulations regulate the inquiry and utilization of real estate registration materials, stipulate the conditions and requirements for information disclosure in the registration book, husband and wife rounds and inspection of interested parties, and strictly limit "rounds by people".
9. The compulsory transfer of green books, the contents of the registration of houses left over from history, etc. were stipulated to solve the difficult problems left over from registration. The "Regulations" stipulate that in the process of dealing with the problems left over from the history of real estate registration, non-essential items in the register can be recorded by default in combination with the actual situation; When handling the registration of condominium ownership, the real estate register can only record the exclusive construction area, not the shared construction area.
Main innovations:
The innovation of the Regulations on the Registration of Real Estate in Shenzhen Special Economic Zone (Draft for Comment) (hereinafter referred to as the Regulations) is mainly reflected in the following aspects:
1. unify the basis of real estate registration and real estate registration agencies.
Unified registration basis. We will implement the unified national real estate registration system, no longer legislate for the separate registration of real estate, sea areas, forest rights and other real estate, and bring all kinds of real estate registration into a unified norm to unify the basis for real estate registration. The "Regulations" stipulate the right to use sea areas, the right to use islands, the right to use forest land and the ownership of forest trees, thus fundamentally confirming the real right status of real estate such as sea areas and forest rights.
Unified registration agency. It is clear that Shenzhen Real Estate Registration Center has the qualification of registration subject for all kinds of real estate registration such as land, houses, forest land and sea areas, and confirms the legal status of Shenzhen Real Estate Registration Center. The Regulations on the Registration of Real Estate in Shenzhen Special Economic Zone, which was revised in 20 13, created a precedent for public institutions as real estate registration agencies. This "Regulations" is the perfection and expansion of the current "Regulations on Real Estate Registration" to avoid the unqualified registration subject. At the same time, we will further strengthen the management of real estate registration institutions, increase the qualification management of registration personnel, collective decision-making for major difficulties in registration, liability insurance for registration errors, restrictions on the scope of registration review, and determination of registration compensation liability, and further clarify the responsibilities and obligations that registration institutions and registration personnel should bear.
2. Improve the registration of inheritance, wills and bequests.
The registration of inheritance, will and bequest of real estate has always been a difficult point in real estate registration. According to the provisions of the Civil Code, inheritance, will and bequest of real estate need to be examined by the registration authority.
In inheritance, it is necessary to examine the qualifications of the heirs, the inheritance situation, whether the abandonment of inheritance rights is voluntary, the authenticity of the declaration of abandonment of inheritance rights, whether there are claims and debts before the life of the inheritor, and whether the heirs have lost their inheritance rights according to law; In testamentary succession, we should examine the true meaning of the decedent, the scope of the will, the effectiveness of the will, and whether the decedent has lost the right of inheritance. In bequest, it is necessary to examine the validity of the bequest and maintenance agreement, whether the property involved falls within the scope of the bequest and maintenance agreement, whether the legal heirs lack the ability to work and have no source of income, and whether the dependents of the bequest and maintenance agreement have fulfilled their maintenance obligations.
This kind of legal relationship is very complicated in social life, and it is difficult for professionals to grasp it. Once it is not handled well, it may lead to family disputes and even social contradictions. However, the staff of the registration agency also lack sufficient control and control ability, so it is really very difficult for them to make accurate examination and judgment. Therefore, this legislation focuses on refining the provisions on the registration of real estate related to inheritance, will and bequest.
First, the statutory inheritance and testamentary inheritance are stipulated separately, and the application materials for the transfer registration of the two types of inheritance are clarified. In the transfer registration of legal inheritance, all legal heirs' agreements on real estate distribution and other materials are needed, and in the transfer registration of wills and bequests, the parties' commitments on the authenticity of wills and bequests are needed. At the same time, it is clear that such transfer registration, the parties can also submit notarized or other legal documents.
Second, the announcement procedure has been added, and it is clear that the real estate registration agency can announce the materials such as the death certificate of the parties, the will or the agreement of all legal heirs on the distribution of real estate, and the announcement time is not less than three months.
Third, draw lessons from German and Taiwan Province's experience, and introduce a third-party review agency to make it clear that the applicant can entrust a notary public or a lawyer with the qualification of testator to investigate or verify the legal facts involved in the registration when handling the transfer registration of inheritance rights. Notary documents or legal opinions issued by notary agencies or law firms can be used as the basis for registration review. Introduce the testator system in the Civil Code, share the responsibility of examination reasonably, and guide the parties to realize the inheritance right smoothly and avoid disputes by hiring testator or carrying out notarization related to the transfer registration of inherited real estate. It is optional for the applicant to entrust a notary public or a lawyer with the qualification of testator to investigate or verify the legal facts involved in the registration, but it is not mandatory, and it does not forcibly increase the burden on the applicant.
The fourth is to explore the establishment of the notification commitment system. In the transfer registration of inheritance and bequest, it is really difficult for the applicant to obtain the death certificate, kinship certificate and other materials, which can be replaced by the applicant's written commitment to reduce the burden on the parties. The specific measures for the administration of the notification commitment system shall be formulated separately by the competent department. Due to the notification and acceptance system, some application materials were obtained through the acceptance system, and the legal relationship is still in an unstable state. Therefore, the "Regulations" stipulates that the real estate that has been transferred through the notification and commitment system may not be transferred for registration within one year after the transfer registration. To prevent the parties from transferring the real estate immediately after obtaining it by deception, so that there is a bona fide third party and the real estate cannot be recovered.
3. Specify the registration of residence right in detail.
The right of residence is a newly added content in the Civil Code. Article 368 of the Civil Code stipulates: "The right of residence shall be established free of charge, unless otherwise agreed by the parties. Where the right of residence is established, it shall apply to the registration authority for registration of the right of residence. The right of residence is established at the time of registration. " According to the provisions of the Civil Code, the right of residence should be registered, but the Civil Code is vague about how to register the right of residence.
This legislation has clarified the application materials and handling process of residence right registration. In view of the controversial issues in practice, such as whether a mortgaged house can set up residence rights, whether a house can set up multiple residence rights, whether the residence rights can be transferred, and when the residence rights will expire, this paper gives clear norms, which can effectively guide the registration practice of residence rights in our city.
First of all, the institutional value of the right of residence lies in protecting the housing problems of the weak (such as the elderly, minor children, the divorced party who has not obtained the property ownership, etc.), so that they can live in a house and their lives can be guaranteed.
The system value of mortgage right lies in ensuring the realization of creditor's rights in the future. When the debtor can't repay the debt, he can get priority compensation from the sale of collateral.
Therefore, the ownership and power involved in the two are inconsistent, so there is no conflict between the two.
However, in practice, the establishment of the right of residence may indeed have an adverse impact on the mortgagee, because the right of residence is a long-term property right, and once the right of residence is established, the auction price may be greatly reduced, and the function of ensuring the mortgagee's priority in compensation will also be greatly affected.
Therefore, the "Regulations" stipulates that if the house applying for residence registration has been registered with mortgage, the owner of the house shall notify the mortgagee. The mortgagee may, after receiving the notice, require the mortgage to be realized in advance or replace the collateral. Because the right of residence is aimed at a real estate unit, a real estate registration unit can only set up one right of residence, but there can be more than one right holder.
4. Innovative advance notice registration regulations
First, cancel the mortgage of uncompleted flats, and link the pre-sale mortgage registration with the pre-sale commercial housing filing.
Because our city has been mortgaged the pre-sold commercial housing in accordance with the Regulations of Shenzhen Special Economic Zone on Real Estate Registration, there is almost no practice in our city's advance registration. (Pre-completed mortgage refers to mortgage registration for buildings under construction that have not yet been completed. According to the relevant national regulations on real estate, buildings under construction can only be registered for mortgage advance notice, but not for mortgage registration (mortgage of uncompleted flats).
Therefore, the existing mortgage of uncompleted flats in our city is different from the pre-registration of mortgage rights of buildings under construction in China, so it is impossible to collect data and standardize management.
To this end, the "Regulations" canceled the mortgage of uncompleted flats, and handled the advance mortgage registration for pre-sold commercial housing according to the national system. In order to link up with the filing of pre-sale commercial housing, this Regulation stipulates that "the pre-seller of commercial housing shall apply for the pre-registration of pre-purchase commercial housing within ten days after the filing of the pre-sale commercial housing sales contract". So as to gradually connect the pre-sale commercial housing filing with the pre-sale commercial housing mortgage notice registration. Considering that developers may be slow to register the pre-sale mortgage of commercial housing, this Regulation stipulates that buyers can unilaterally apply for the pre-sale mortgage registration of commercial housing.
The second is to update the regulations and refine the advance notice registration system of relocation compensation agreement.
In March, 20021,the Regulations on Urban Renewal of Shenzhen Special Economic Zone was promulgated and implemented, in which Article 31 stipulated that the relocation compensation agreement could be registered in advance and applied to the real estate registration agency for registration. During the validity period of advance notice registration, the real estate registration agency will not accept the registration business of real estate transfer, mortgage or change of the relocated house without the unanimous consent of the advance notice registration obligee. By means of advance notice registration, it is restricted that the urban renewal projects that have signed the relocation compensation agreement cannot be transferred, mortgaged or changed, thus avoiding one room and two purchases and disrupting the order of the renewal market. The "Regulations" further refine the procedures for advance notice registration of relocation compensation agreements, and clarify that in addition to updating, relocation compensation agreements signed by projects such as land preparation and renovation of old residential areas can also be registered in advance notice.
5. Use information technology to further implement the concept of facilitating the people and benefiting the people.
With the development of information technology, real estate registration has undergone earth-shaking changes. This legislation further optimizes and simplifies the real estate registration process in combination with the requirements of the national administrative examination and approval reform and the optimization of the business environment, so as to let more information run away and facilitate the people.
First, simplify the application materials, delete the bottom clause of the application materials, and stipulate that the registration agency can obtain materials in real time and may not ask the parties to provide them.
Second, registration agencies are required to further strengthen information sharing, continuously apply for registration information platform, and realize online mortgage and seizure as soon as possible.
The third is to stipulate the specific application types of unilateral application and entrustment application by the parties and publish them in time to facilitate the people to consult when applying for registration.
The fourth is to refine the inquiry of real estate registration information. The original "Provisional Regulations" and "Implementation Rules" did not stipulate the contents of inquiry and enjoyment of real estate registration information. This "Regulations" regulates the inquiry and utilization of real estate registration materials, stipulates the conditions and requirements for the disclosure of registration book information, husband and wife rounds, and inspection of interested parties, and strictly restricts "rounds by people".
The fifth is to further reduce the time limit for registration and optimize the business environment.
6. Solve the registration problems.
In view of all kinds of problems left over from the registration history, we should classify and distinguish the historical situation, clarify the handling principles in legislation, straighten out the responsibilities of various departments, and coordinate the special provisions left over from the registration history to systematically solve the problems left over from the registration history.
First, it is clear that due to historical reasons, the proof of land ownership source is incomplete and it is impossible to reissue the certificate of completion acceptance. Due to historical reasons such as the change of land management system or the lack of original data and the loss of the original construction unit, the pre-registration materials such as the source data of land ownership and the certificate of completion acceptance are incomplete, and the relevant procedures can be improved when the ownership is clear.
Second, in terms of the registration content of houses left over from history, it is clear that it can be registered by default. Considering that illegal buildings left over from history may not be able to record the allocated building area, re-mapping and re-allocating the building area may affect the legal property right of the issued immovable property certificate. Therefore, this "Regulations" stipulates that in the process of dealing with the problems left over from the history of real estate registration, non-essential items in the register can be recorded by default in combination with the actual situation; When handling the registration of condominium ownership, the real estate register can only record the exclusive construction area, not the shared construction area.
The third is to clarify the principle of cross-certification. It is clear that some houses have been registered separately or transferred (cross-registration) without the first registration of construction land and house ownership in accordance with historical regulations. If the first registration can be reissued, the first registration should be made. If it is really impossible to reissue the first registration, the principle of continuous registration can be broken. On the premise of clear ownership, the first registration will not be reissued, and the real estate procedures will continue for other houses in the same area according to the original regulations, but the newly processed property rights shall not damage the established property rights.
Because the opinion draft is nearly 1 18,000 words, only part of the contents of the major events in the property market are intercepted. For the full version, please check the contents released by Shenzhen Bureau of Regulation and Self-Administration in official website:
Excerpt from the Regulations on the Registration of Real Estate in Shenzhen Special Economic Zone (Revised Draft)
general rules
Scope of Application These Regulations shall apply to the real estate registration activities in Shenzhen Special Economic Zone.
The term "real estate registration" as mentioned in these Regulations refers to the act that the real estate registration agency records the natural status, rights status and other legal matters of real estate in the real estate register according to law.
The term "immovable property" as mentioned in these Regulations refers to land, sea areas, buildings, structures, trees and other fixed objects.
Real estate register and real estate registration certificate
Register form Real estate register adopts electronic media.
If the real estate registration book is damaged or lost, the real estate registration institution shall rebuild it according to the original registration materials.
The effectiveness of the register The real estate register shall be made by the real estate registration agency according to law and kept permanently.
No organization or individual may damage the real estate register; Unless it is corrected according to law, the items recorded in the real estate register shall not be modified.
Registration procedure
* * * If the right of real estate is changed due to sale, exchange, gift and mortgage, both parties shall apply for real estate registration.
Unilateral application in any of the following circumstances, can be unilaterally applied by the parties:
● After the signing of the compensation agreement for urban renewal and relocation, if the property owner fails to apply for the relevant advance notice registration of the relocated house with the market subject as agreed, the market subject shall apply for the relevant advance notice registration of the relocated house;
* * * There is an application for disposition of real estate * * * If there is an application for registration of real estate, the application shall be made by two-thirds or more of the * * * owners or all * * * owners * * *, except as otherwise agreed by the parties in the register.
If someone disposes of his share of real estate by shares, there is no need for other people to apply together.
If the application for subrogation is under any of the following circumstances, the parties may apply for registration by subrogation to the real estate registration agency in their own names:
● If the development and construction subject of the construction project is lost and there is no successor, the purchaser or the unit designated by the people's government at or above the district level may apply for real estate registration in subrogation.
Collective decision-making mechanism Establish and improve the collective decision-making mechanism for real estate registration.
When the real estate registration agency handles difficult and complicated registration matters involving group letters and visits, major social interests, and problems left over from the registration history, it shall be decided by the real estate registration agency through collective discussion.
Registration of real estate rights and other registrations
General provisions:
Registration types of real estate registration include first registration, change registration, transfer registration, cancellation registration, correction registration, advance notice registration, objection registration and seizure registration.
Notification and acceptance system In the transfer registration of inheritance and bequest, it is really difficult for the applicant to obtain death certificates, kinship certificates and other materials, which can be replaced by the applicant's written commitment. The specific measures shall be formulated separately by the competent department.
Real estate registered for transfer through the notification and commitment system shall not be registered for transfer again within one year after the transfer registration.
When handling the transfer registration of inheritance and bequest, the third-party service applicant may entrust a notary public or a lawyer with the qualification of estate manager to investigate or verify the legal facts involved in the registration. A notarization institution or law firm shall be diligent and responsible for the authenticity, accuracy and completeness of the legal facts identified by it, and issue notarial documents or legal opinions.
The real estate registration institution may take notarized documents or legal opinions issued by notarized institutions or law firms as the basis for registration and examination.
Announcement of Inheritance and Transfer Registration After accepting the application, the real estate registration agency can make an announcement on the death certificate submitted by the parties, the agreement on the distribution of real estate by the survivors or all legal heirs and the application matters on its portal website, and the announcement time is not less than three months. If there is no objection or the objection is not established at the expiration of the announcement period, the real estate registration agency shall record it in the real estate register in time.
Registration of ownership and usufructuary right:
If the state-owned construction land use right and sea area use right are obtained by integrated registration according to law, you can apply for the first registration of state-owned construction land use right and sea area use right separately.
Buildings, structures, trees and other fixed objects shall be registered together with the land and sea areas to which they are attached, so as to keep the subject of rights consistent.
Incomplete source data of land ownership In the process of dealing with the problems left over from the history of real estate registration, if the source data of land ownership is really unavailable or incomplete due to historical reasons such as the adjustment of land management policies and incomplete archives, the competent department or its dispatched office may make an announcement at the location of real estate for 30 days, and if the announcement is uncontroversial or the dispute is untenable, it shall issue relevant supporting documents of land ownership source, which shall be regarded as the source data of land ownership.
Unable to obtain the proof that the house has been completed. In the process of dealing with the problems left over from the history of real estate registration, if the construction, survey, design, construction, supervision and other units of the construction project are lost or do not cooperate, it can be regarded as the proof that the house has been completed after obtaining the qualified documents of house quality and safety appraisal and the fire inspection and acceptance filing documents filed by the housing construction department.
When some registered real estate registration agencies of the owner * * handle the first registration of house ownership, they shall, according to the application, register the right to use the roads, green spaces, other public places, public facilities, property service houses and the construction land occupied by the owner * * * together, and record them in the real estate register.
The real estate that restricts the real estate rights in the source document of the land ownership of the green book compulsory transfer or the real estate register can be transferred and registered according to the effective legal documents of the people's court and the arbitration commission. After the transfer, the original rights restrictions will not be changed, except as otherwise provided by laws and regulations.
Loss of development and construction subject If the development and construction subject of the construction project is lost and the right to use state-owned construction land and the ownership of the house have not been registered for the first time, the first registration and transfer registration can be handled together.
In the process of dealing with the problems left over from the history of real estate registration, the non-essential items in the real estate registration book can be recorded by default in combination with the actual situation; When handling the registration of condominium ownership, the real estate register can only record the exclusive construction area, not the shared construction area.
Houses with residential functions whose right of residence has been registered may establish the right of residence according to law.
A real estate unit establishes a right of residence.
Mortgage registration:
If multiple mortgages are established on the same real estate in the order of mortgage registration, the real estate registration institution shall register them in turn according to the order of acceptance time and record them in the real estate register. If the parties have otherwise agreed on the sequence of mortgage and obtained the consent of other interested mortgagees, the mortgage registration shall be handled from such agreement.
If the building under construction is mortgaged, the mortgaged property does not include the pre-purchased commercial housing that has been registered in advance and the commercial housing that has been registered for pre-sale.
When the building under construction is completed and the ownership of the building is registered for the first time, the parties concerned shall apply for changing the mortgage registration of the building under construction into the mortgage registration of the building.
Correction of registration:
If the cancellation of registration is under any of the following circumstances and the conditions for correction of registration are not met, the real estate registration agency may cancel all or part of the registered items, except that the cancellation has an adverse impact on other registrations after the wrong registration:
(1) There is evidence to prove that the party concerned concealed the real situation or forged relevant certificates and documents when applying for registration;
(2) The certificate of reasons for registration is deemed invalid or revoked according to law.
Except for bona fide acquisition, the real estate registration institution shall record the cancellation of registration in the register.
After the cancellation meets the conditions for real estate registration, it can be registered accordingly in accordance with these regulations.
Objection registration:
Application of Objection Registration If an interested party considers that the right recorded in the real estate register belongs to the wrong place and applies for objection registration, it shall submit the following materials:
(a) the evidence of interest in the registered real estate rights;
(two) the proof of the wrong ownership of the right recorded in the real estate register.
Advance notice registration:
If the application of advance notice registration is under any of the following circumstances, the parties may apply for advance notice registration of real estate in accordance with the agreement:
Pre-registration of pre-purchased commercial housing The pre-seller of commercial housing shall apply for pre-registration of pre-purchased commercial housing within 10 days after the pre-sale commercial housing sales contract is filed.
To apply for advance notice registration of pre-purchased commercial housing, the following materials shall be submitted:
(a) the pre-sale contract of commercial housing that has been filed;
(2) If the pre-buyer unilaterally applies for the advance notice registration of pre-purchased commercial housing, and the pre-seller and the pre-buyer attach conditions and deadlines to the advance notice registration in the pre-sale contract of commercial housing, the pre-buyer shall submit corresponding materials.
If the pre-purchased commercial housing applying for advance notice registration has already registered the mortgage of the building under construction for the first time, the parties concerned shall apply for cancellation of the mortgage of the building under construction and advance notice registration of the pre-purchased commercial housing.
The following materials shall be submitted when applying for advance registration of mortgage right of pre-purchased commercial housing:
(a) the proof materials that have been registered for the pre-purchase of commercial housing;
(2) mortgage contract;
(three) the parties' agreement on advance notice registration;
After the pre-purchased commercial housing is registered for the first time, the parties concerned shall apply for changing the pre-registration of pre-purchased commercial housing mortgage into the first registration of commercial housing mortgage.
The following materials shall be submitted when applying for advance registration of real estate involved in urban renewal, land preparation and transformation of old residential areas:
(a) the filing of the relocation compensation agreement;
(2) the agreement of the parties on advance notice registration.
Seal up registration:
Where two or more people's court waiting for seal-up registration seal up that same real estate, the real estate registration agency shall handle the seal-up registration for the people's court that served the notice of assistance in execution first, and handle the seal-up registration for the people's court that served the notice of assistance in execution later. If the seal-up registration fails, the first-ranked waiting seal-up will be automatically turned into seal-up, and the seal-up period will be counted from the time when the waiting seal-up is turned into seal-up.
The order of waiting for the seal-up registration shall be arranged according to the time when the notice of assistance in execution of the people's court is delivered to the real estate registration institution.
Management and utilization of real estate registration data
Public inquiry natural persons, legal persons and unincorporated organizations may inquire about the following information recorded in the real estate register with their identity certificates:
(a) the natural condition of the real estate;
(2) Whether the real estate has mortgage registration, advance notice registration or objection registration;
(3) Whether the real estate has been sealed up for registration or other restrictions.
Husband and wife can inquire about the registration result of spouse's real estate with the application form, identity certificate and marriage certificate.
Stakeholders can inquire about the registration results of real estate that have an interest in civil disputes by holding the application, identity certificate and proof of interest.
If a lawyer is entrusted to handle the dispute, the entrusted lawyer can hold the lawyer's practice certificate and the certificate issued by the law firm to handle the civil dispute of real estate to inquire about the registration result of real estate that has an interest in the dispute.
Potential Stakeholders Verifying the interested parties who intend to buy, sell, exchange, donate, lease or mortgage real estate may apply for verifying whether the registered results of the inquired real estate are consistent with the records in the register with the application form, identity certificate and the registered results of the real estate to be verified.