On November 25, the website of Shenzhen Property Management Industry Association announced that Shenzhen Bureau of housing and urban rural development issued an emergency notice on the stability of eggshell apartment tenants (hereinafter referred to as the notice). The notice requires that property service enterprises shall not drive away the tenants who have signed the lease contract with eggshell apartment and are still in the lease term and have paid the full rent by means of water, power and gas cut-off.
Qi Yanbing, a lawyer of Guangdong Huashang law firm, told the reporter of Huaxia times that unless it is clearly stipulated in the contract signed by the tenant that its lease effectiveness is dependent on the contract effect between the platform party and the landlord, even if the breach of contract by the platform party meets the termination conditions, the landlord has no right to require the tenant who is still in the validity period of the lease contract to move out, if he adopts violence The eviction of a tenant will infringe upon the legitimate rights and interests of the tenant, and he shall be liable for damages.
Shenzhen issued documents to prevent conflicts from intensifying
Since the middle of November, there have been reports that the landlords of eggshell apartments have expelled their tenants because they have not received the rent. Previously, although the eggshell apartment officials said that they would refute the rumors of bankruptcy and running away, there were more and more news that the tenants were driven away by the landlords. The offices of eggshell apartments in Nanjing and Chengdu have been empty, and even eggshell apartment staff have gone to ask for salary.
In response to the eviction of eggshell apartment tenants by the landlord, Qi Yanbing said in an interview with our reporter that if the tenant has paid the rent as promised, and the lease is still within the agreed period of the contract and there is no breach of contract or the breach is not serious enough to be relieved, its rental interests should be protected by law.
Since the contractual relationship between the tenant and the platform is independent of the contractual relationship between the landlord and the platform party, unless it is explicitly stipulated in the contract signed by the tenant that its lease effect is dependent on the contract effect between the platform party and the landlord, even if the platform party understands the breach of contract by the landlord, the landlord does not have the right to claim the rent which is still in the validity period and has no breach of contract to the extent of termination The guests moved away. If the tenant is expelled by violence, the legitimate rights and interests of the tenant will be infringed, and the tenant shall be liable for damages, Qi warned
Qi Yanbing believes that there are two types of basic contract relationship in the business model of long-term rental apartments like eggshell, namely, the long-term rental contract relationship between the platform side and the landlord, and the lease contract relationship between the platform party and the tenant. Generally speaking, there is no direct contract legal relationship between the landlord and the tenant. Therefore, there are many hidden dangers in terms of lease term, rent delivery and lease management between the two contractual relationships.
Eggshell apartments introduce third-party financial institutions to sign rent loan contracts with tenants. Therefore, many eggshell apartment tenants say that they are faced with the dilemma that their houses are repossessed by the landlord but still have to pay the rent loan. On November 19, Weizhong bank issued an announcement in response to the problems related to the rent loan of eggshell apartment. The announcement showed that if the legitimate rights and interests of the tenants are infringed (such as forced withdrawal, water supply, power failure, etc.), it is suggested that tenants should protect their rights through legal means. Wechat will make appropriate arrangements for the loan to ensure that the tenants credit reference will not be affected before March 31, 2021.
In this regard, Qi Yanbing believes that in general, if the performance of the lease contract is hindered or terminated due to the reasons of the platform party or the landlord, the tenants legal liability to repay the principal and interest to the loan bank cannot be exempted, and those who breach the contract may also face the problem of credit investigation. However, according to the relevant provisions of the Supreme Court, if the lease contract is rescinded, declared invalid or cancelled, which means that the purpose of the lease loan has changed significantly, the tenant can sue to the court to demand the termination of the loan contract, and the lending bank shall not claim the tenants liability for breach of contract because the tenant exercises the right of rescission.
The experience of eggshell apartment tenants has aroused public concern. Many citizens have proposed on the Internet that they are willing to accept the transition of tenants affected by eggshell thunderstorm.
Internet users are willing to accept the transition of eggshell apartment tenants
With the continuous fermentation of the eggshell incident, the situation of eggshell apartment tenants has also attracted the attention of Shenzhen housing and construction department.
According to the website of Shenzhen Property Management Industry Association on November 25, Shenzhen housing and Construction Bureau issued the urgent notice on the stability of eggshell apartment tenants. The notice requires that property service enterprises should take the initiative to report the disputes and unstable factors between the owners and tenants caused by the default of the eggshell apartment rent in the community. For the tenants who have signed a lease contract with the eggshell apartment, are still in the lease term and have paid the rent in full, the property service enterprises shall not drive away the tenants by means of water, power and gas cut-off to intensify the contradictions, and shall guide all parties to solve the problems through legal means.
The documents of Shenzhen Municipal Bureau of housing and urban rural development are in line with the requirements of national laws and regulations, and are the legal protection of the legitimate rights and interests of tenants and social public order and good customs. Qi Yanbing said. He believes that for the loss caused by the platform Partys running away, the landlord should first claim the rights of the platform party, and have no right to claim against the tenant who has paid the rent and has no breach of contract. Unless the tenant has breach of contract such as rent and residence, the landlord shall be liable to the platform party for breach of contract. The landlord can sue the court to exercise the legal subrogation right, or even claim the platform Partys liability for breach of contract to the court For the request of bankruptcy liquidation, for the loss of the tenant caused by the platform party, the tenant can also choose to sue or request bankruptcy liquidation and other litigation channels to protect their rights.
Urgent notice of Shenzhen Municipal Bureau of housing and urban rural development on the stability of eggshell apartment tenants
Qi Yanbing reminds: if the tenant is unable to continue to rent due to the responsibility of the platform party and suffers losses, the tenant can ask the platform party to compensate for the loss. The way of compensation can be double refund of the deposit, return of the rent paid during the period of inability to continue to use and pay interest, compensation for loss and moving cost according to the market average rent standard of the same section in the same period. In case of violent eviction by the landlord, he can also claim against the landlord for the loss and moving cost caused by his inability to continue to live in accordance with the average market rent standard for the same period of time.
After the tide of long-term apartments recedes
With the advent of the traditional off-season, the long-term rental apartment industry, which has already been full of wind and rain, has been exposed to the eggshell of a leading enterprise, which is like a heavy bomb to the field of long-term rental apartments. Eggshell apartments, which operate more than 400000 rooms, went public on the New York Stock Exchange in January this year, and once became the largest long-term rental apartment listed company in China.
In recent years, the long-term rental apartment is a business model favored by capital, and the number of related enterprises has continued to rise. The data shows that in 2019, the number of new registered enterprises reached 17000, with a year-on-year growth of 22.9%. In the first three quarters of this year, there were 12000 new enterprises, with a year-on-year growth of 9.1%, of which 5000 were newly added in the third quarter.
In a few years, the market for long-term apartments has expanded rapidly. According to the data, as of November this year, there have been about 66000 related enterprises, among which Guangdong Province ranks first in China with nearly 10000. The long-term apartment usually adopts the business model of charging the tenant the whole quarter or the whole years rent and paying the landlord the monthly rent, which creates a lot of cash flow by using the time difference. This business model is favored by capital because it can quickly accumulate and generate differences.
Although it has become a wind outlet, the mode of high in and low out and long rent and short payment has hidden uncontrollable risks. Once the long-term rental apartment suddenly runs away, the contradiction can only be left to the landlord and the tenant, and both parties become victims. In addition, at present, the rent loan mode is introduced into the long-term apartment, and the non bank financial institutions generally provide rent loans to the tenants. If the cash flow used for arbitrage has problems, the scope will be wider, and the claims of victims will be more complex and difficult.
Once the platform side of the long-term apartment goes bankrupt, the affected landlords and tenants may become creditors or debtors, and they will also be included in the bankruptcy liquidation procedure. The creditors who have been declared can be compensated proportionally in the future bankruptcy reorganization or liquidation procedures, and the debts owed by the debtor will also be listed as bankruptcy claims and will be recovered by the court and the bankruptcy administrator.
Qi Yanbing said frankly: the most important problem of the long-term apartment model lies in the fragile capital chain and the lack of corresponding management brought about by the savage growth, especially in the aspect of coordinating the stakeholders such as the landlord and the tenant, the tenant and the loan bank, there has been a major hidden danger. In this regard, he suggested that such platforms should establish an effective risk early warning and rescue mechanism in terms of the succession and linkage of the above-mentioned interests in the operation and management of such platforms, especially in the aspect of how to balance the cash flow with information disclosure and association arrangements in the event of default of the landlord or tenant. He also suggested that the regulatory authorities should issue corresponding rules and regulations, and in these aspects, the regulatory authorities should also introduce corresponding rules and regulations To request.
At present, Chongqing, Chengdu, Xian, Shenzhen and other places have issued special notices requiring special supervision on the rents received by housing rental enterprises and the funds obtained by housing leasing loans. On November 17, Shenzhen housing and Construction Bureau issued the urgent notice on effectively regulating the operation behavior of housing rental enterprises, which requires that the housing rental enterprises shall not require the lessee to use the housing rent consumption loan by concealing, cheating or forcing, or induce the lessee to use the housing rent consumption loan in the name of rent installment and rent preference, and shall not cancel the housing rent The relevant contents of fee loan are embedded in the housing lease contract.
Editor in charge: Xu Yunqian chief editor: Gong Peijia