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Of the real estate enterprises mergers and acquisitions in the land management authority to review

Author: GuoMingHong From: www.yourpaper.net Posted: 2010-06-02 07:00:38 Read:

Abstract: with the continued introduction of rapid development of the national real estate market and the macro-control policy. The two land transactions market has been active. Based on real estate enterprise M & A and indirect obtain development land is the real intention of M & A.Combined with the legal practice of real estate enterprises mergers and acquisitions, it discusses several legal issues of land ownership in the review of the Target Corp.
Keywords paper: Real Estate Enterprises: M: land tenure review
Real Estate Company mergers is absorbed by the Real Estate Company all equity is transferred, the company originally all debts and risks arising therefrom, shall undertake the responsibility for all: and the acquisition by Acquiring Company is absorbed by the shareholders and the equity ratio of the Real Estate Company internal changes, the company's external debt is borne by the company. The shareholders can according to the proportion of equity or agreed to in the equity capital limits. Namely the acquiring company only the corresponding liability of acquired company debt or the risk of shareholders.Due to the particularity and complexity of Chinese land system. In the real estate industry mergers and acquisitions is still risky.In view of the investment risk, enterprises should pay special attention to purchase the right to use different examination made by different ways of land.
, a Target Corp land use right is obtained through the sale of
The Target Corp in the form of transfer of state-owned land use right, land acquisition procedures to review the legality of land use and land contract is consistent. And whether firms pay land leasing.
(a) transferring land use rights subject qualification review the legitimacy of
"City real estate management law" article fourteenth provisions of the second paragraph: "the contract transferring land use rights by the people's Government of the city, county land management and land users signed."However, in practice, the local government to encourage the development of land at formulating preferential land policies for the development of a multitude of names. Some officials even by selling land for land in performance, decentralization of authority, resulting in a large number of illegal sale to main body is signed in the name of the right to use the land to contract when.In view of the development zone around the common phenomenon of transferring land, "explain" second on the legitimacy of the Management Committee of the development zone of transferring state-owned land use rights were further elaborated, and through the "explain" the first "provisions of the statutory assignment reiterated the city real estate management law" and "urban real estate sale and transfer management measures". The development zone management will be signed land use right transfer contract as invalid contract.(for the account of the status quo and transaction order and stability, "explain" at the same time retention provisions in August 1, 2005 before signing. But the prosecution before the city and County People's government land management orders the transfer contract is still considered valid).Accordingly, the survey was conducted before the merger and acquisitions. We must strictly review the legitimacy of the transferor subject qualification of the land use right.Outside as Licensor of the land the city, county people's government administrative departments of land and resources department. Due to its subject qualification defects. Effectiveness of the sale contract should be questioned.Under such circumstances, investors should ask the Target Corp to the right department to sign the contract for granting the land-use right transfer contract. Such as, or in August 1, 2005 before signing without complaint. To re-submit the right sector ratification procedures. In order to avoid huge losses due to invalid contract of assignment.Special attention is needed. The administrative committee of the development zone as the seller sign the lease contract is just a case of assignment of land use right invalid subject.In fact, in accordance with the "spirit of the legislation of city real estate management law". Other departments outside the land management department of any city, county people's government, whether it is the land administration department of the people's government at or above the county level city, or the municipal or county people's Government, land management departments under people's governments at all levels of land management departments have no right to Licensor. The identity of the land use right transfer contract signed. Otherwise, all should be recognized as invalid contract.Therefore. Transferring subject should strictly limited in the land administration department of the people's Government of the city, county investors to hire a lawyer review of legal land use rights.
(two) review of land use right transfer contract is approved and registered
"Tenth City real estate management law" provisions of the local people's government at or above the county level, transferring land use rights for real estate development. According to the control of annual targets for the people's government at or above the provincial level to the total area of transferring land use rights in accordance with the provisions of the State Council approved the plan., reported to the State Council or the people's government at the provincial level.The sixtieth article: "to transfer or way to obtain land use rights transfer. The local people's government at or above the county level shall apply for registration of land management, the land administrative departments of the local people's government at or above the county level shall verify, by the same level people's government issued land use right certificate."Although the "explanation" to clarify the years squabbling about without approval and registration of land use rights transfer contract is effective. Approved by and registered shall not affect the validity of the transfer contract. But the deal's investors. The validity of the contract risk release doesn't mean completely eliminate the other risks."Explain" the fourth stipulation: "the contract of assignment of land use right of the transferor failing to handle the transferring of land use rights to land and not approval. The assignee requests to terminate the contract and should be supported."Prompt without the approval of the contract of assignment of the implication of the performance risk.In particular, the climate throughout the land management and policies of chaos, land rent-seeking phenomenon seriously a few years ago, to breed a large number of illegal real estate development enterprises.Although these land use right people seems to conform to the legal form elements from the surface. But a deliberated. Legal risk and business risk hidden behind is often beyond all expectations.If a large number of residential projects, or land leasing is not paid in full, even didn't pay, or have not yet obtained the right to use the land approval and registration certificate, or four cards was incomplete had started, this kind of situation is not in the minority, and often is a product of the agreement transferring the land right money transactions in a few years ago.In view of the fact that most foreign investors involved in real estate development projects for commercial or residential projects, in accordance with the "tender auction listing transferring state-owned land use rights provision". Since July 1, 2002. The project must be by tender, auction or listing of public bidding, most or by agreement transferring obtained.Therefore, mergers and acquisitions of Target Corp.Because of the historical reasons. Some of them may be due to its unique problems left over by agreement transferring land use rights in the legal flaws.Investor wishing to successfully complete the transaction, as the case for completing the formalities and pay the cost of.Also some legal defects are unable to repair or repair cost is too high, and the return on investment is not directly proportional, investors should be cautious investigation. A reasonable assessment of transaction risk and investment income.
(three) the contract of assignment of use is in accordance with the investment purpose
review of land use rights
The use of state-owned land use. Once approved in principle shall not change.Really need to change the special circumstances, should be in accordance with the "City real estate management law" the seventeenth regulation made that transferring party and the city, the county people's government is the competent department of city planning administration with the signing of the land use right transfer contract or agreement to change the land use right transfer contract signed, and adjust the leasing of land use rights.If land use rights arbitrarily change the use, in accordance with the provisions of "City real estate management law" twenty-fifth and "explain" sixth. The assignor may terminate the contract of assignment.Therefore, mergers and acquisitions investors should review the land use right transfer contract of land use change. And whether conforms to the investors investment purposes, if not, go through the legal formalities of change have no possible use.
two, the Target Corp of land use right by means of the transfer system
The so-called transfer. Is refers to through the purchase way in land two levels of markets to obtain land use rights.The right to the use of the land transfer behavior of.Because the two secondary market transfer from the transferor shortage of funds and other reasons, the level of market cost is lower, so many real estate development enterprises land use right is obtained by this way.Is that a defect exists through the transfer of land use right obtained, its service life remaining life for the transfer of contractual life expectancy minus the original land users, land use right has been used for years.Therefore, if the Target Corp is made through the transfer of land should entrust lawyers promptly to the relevant land management departments of Target Corp, investigate and verify the remaining term of land foreign acquirers, to evaluate the rationality of the acquisition price, make a feasibility study report on the right.In addition, the transfer of land, should also use the test the business of land and land use manner consistent with regional land use planning, if does not comply with the overall land use planning, it shall obtain the approval documents of the relevant government department in charge according to law.
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