广东省商品房预售管理条例（修正） Guangdong Province, Administration of Pre-sale of Commodity Premises Regulations (Revised)
(Promulgated by the Standing Committee of the Guangdong Provincial People's Government on 22 August 1998, revised according to the Amending the Decision on 14 October 2000 and effective as of the date of promulgation.)
颁布日期：20001014 实施日期：20001014 颁布单位：广东省人大常委会
PART ONE GENERAL PROVISIONS
Article 1 These Regulations are formulated in accordance with the PRC, Administration of Urban Real Property Law and relevant laws and regulations and on the basis of the real situation in this province, in order to strengthen administration of the pre-sale of commodity premises, to safeguard the legal rights and interests of pre-sellers and pre-purchasers, and to promote the healthy development of the real property industry.
Article 2 For the purposes of these Regulations, the pre-sale of commodity premises shall refer to the sale in accordance with the law by a legally established real property development enterprise of commodity premises to be developed by it prior to completion and acceptance in which the pre-purchaser shall pay a purchase sum for the property in accordance with the contract and the pre-seller shall deliver the commodity premises in accordance with the contract.
For the purposes of these Regulations, pre-seller shall be the real property development and operation enterprise that pre-sells the commodity premises.
For the purposes of these Regulations, pre-purchaser shall refer to the work unit or individual that purchases the pre-sale commodity premises.
Article 3 These Regulations apply to pre-sale, and administration thereof, of legally developed commodity premises within the administrative region of Guangdong Province.
Article 4 The Provincial People's Government administrative department in charge of construction and the municipal and county People's Government administrative departments in charge of construction or departments of real property administration (hereafter, "the departments in charge") shall be responsible for the administration of the pre-sale of commodity premises and organizing the implementation of these Regulations within their administrative regions.
Other relevant administrative government departments shall only carry out tasks for the administration of the pre-sale of real property within the limits of their respective duties.
Article 5 The pre-sale of commodity premises shall abide by the principle of fairness, honesty and trustworthiness.
PART TWO ADMINISTRATION OF COMMODITY PREMISES PRE-SALE PROJECTS
Article 6 A Commodity Premises Pre-sale Licence shall be obtained when pre-selling commodity premises. To obtain the Commodity Premises Pre-sale Licence the following conditions shall be fulfilled:
1. the pre-seller has already obtained a real property development qualification certificate and a business licence;
2. the leaseholds grant fee has been paid in accordance with the relevant provisions of the land administration department and a leaseholds certificate has already been obtained;
3. a construction planning licence and construction works licence are held and the construction quality and safety monitoring procedures have been carried out;
4. the work schedule, time of completion and time of delivery for use have been set;
5. the foundations and structure of commodity premises of not more than three storeys have been completed. In the case of commodity premises of not less than four storeys, if the premises have a basement, the foundations and first storey structure have been completed; if the premises do not have a basement, the foundations and structure of four storeys have been completed;
6. a special property pre-sale account has been opened with a commercial bank in the place where the project is located;
7. the commodity premises pre-sale project and its leaseholds are free from third party rights; and
8. any other conditions stipulated in laws and regulations.
The provincial administrative department in charge of construction may, according to the supply and demand conditions of the market, make adjustments to the image and progress of the commodity premises pre-sale project and implement such adjustments upon approval of the provincial people's government, provided that they are not lower than the conditions stipulated in Item (5) in the preceding paragraph.
Article 7 The pre-seller shall apply to the department-in-charge for a Commodity Premises Pre-sale Licence for each phase or for each single project.
On receiving an application the department in charge shall verify the project in accordance with the pre-sale conditions stipulated in these Regulations and, within 15 days of receiving the application, shall issue a Commodity Premises Pre-sale Licence to those projects which fulfil the conditions or, for projects which do not fulfil the conditions, notify the applicant in writing giving the reason(s) why the licence is not issued.
The Commodity Premises Pre-sale Licence shall state clearly the pre-seller's name and the location, building number, number of storeys and floor area of the commodity Premises for pre-sale. A plan showing clearly the location and building number of the commodity premises for pre-sale should be attached.
Article 8 When the department in charge issues the Commodity Premises Pre-sale Licence it shall ask the pre-seller to provide information such as the construction schedule, investment plan and source of funding, etc. and through on-site inspection and analysis verify that the date for completion of construction of the project and delivery for use is reasonable. If the department-in-charge can prove that the date is not reasonable it shall order the pre-seller to amend it.
Article 9 A pre-seller may not create third party rights over a commodity premises project or its leaseholds prior to completion, verification as up-to-standard and delivery for use of a pre-sold commodity premises.
Article 10 A pre-seller must not change without authorization the design of commodity premises which have already been pre-sold. When changing the building structure, apartment structure, use, function, usable area or the design of other items agreed upon in the contract, the agreement of the relevant pre-purchaser must be obtained. If the pre-purchaser does not agree to the changes and the two sides cannot reach agreement on compensation through negotiation, the pre-purchaser can demand the return of the pre-sale payment already paid with interest thereon and can in accordance with the contract agreement claim liquidated damages from the pre-seller. If no liquidated damages have been agreed upon in the contract, the pre-purchaser may in accordance with the law claim liquidated damages at not less than 10% and not more than 20% of the pre-sale payment already paid.
Article 11 If the pre-seller transfers an already pre-sold commodity premises project for development and construction by another real property development enterprise, it shall obtain the agreement of the pre-purchasers holding not less than two-thirds of the floor area of the pre-sold commodity premises.
The party to which the pre-sale commodity premises project is transferred must be a real property development and operation enterprise established in accordance with the law and with the required grade of qualifications.
Article 12 Where a pre-sale commodity premises is transferred, the transferee shall enjoy the rights of the original pre-seller with regard to the pre-purchasers, and undertake the obligations undertaken by the original pre-seller with regard to the pre-purchasers.
Article 13 The transferee should submit the following documents to the department which issued the Commodity Premises Pre-sale Licence within 30 days of signing the project transfer contract with the pre-seller, in order to change the Licence:
1. the commodity premises project transfer contract;
2. the original commodity premises pre-sale licence;
3. the relevant documents agreeing to the change from departments such as the land administration and urban planning departments;
4. the real property development qualification certificate of the transferee;
5. the pre-sale property special account opened with a commercial bank in the place where the project is located; and
6. other conditions and supporting materials as specified by laws and regulations.
In the case of projects which fulfil the conditions the department-in-charge shall amend the Commodity Premises Pre-sale Licence within 15 days of receiving the application.
The pre-seller shall cease to pre-sell commodity premises from the date on which the project transfer contract is signed. The transferee must not pre-sell commodity premises until it has exchanged the Commodity Premises Pre-sale Licence.
Article 14 Municipal and county-level departments in charge shall follow and supervise the progress of projects for which a Commodity Premises Pre-sale Licence has been issued. If problems are discovered they shall order the pre-seller to rectify the problems within a time limit.
Article 15 Once a pre-sold commodity premises project is completed the department-in-charge shall organize verification of the completed work in accordance with the provisions of laws and regulations. The premises can only be delivered to the pre-purchaser for use once it has been verified as up-to-standard.
Article 16 Municipal and county-level departments in charge shall set up and publicize pre-sale commodity premises enquiry and complaint telephone lines. Complaints received shall be dealt with and replied to in a timely fashion.
PART THREE ADMINISTRATION OF THE PRE-SALE OF COMMODITY PREMISES
Article 17 When pre-selling commodity premises the pre-seller shall provide the pre-purchaser with written clarification of the following:
1. the pre-seller's name, registered address, contact telephone number and legal representative;
2. the Commodity Premises Pre-sale Licence or a copy thereof confirmed by the department that issued the licence;
3. the project development schedule and date for completion and delivery for use;
4. a plan of the project and ancillary facilities;
5. the type of structure, type of apartment and standard of decoration of the commodity premises, and method of apportioning floor area for public and common use;
6. the price of the pre-sale commodity premises and the method of payment;
7. the special account for the pre-sale payment for the commodity premises;
8. the management of the property; and
9. other items specified in laws and regulations.
Article 18 A pre-seller who appoints a real property intermediary organization as sales agent shall appoint a qualified intermediary organization and issue a letter of appointment specifying the scope and limitation of the power of the agent. Agents shall provide written clarification to the pre-purchaser of the items stipulated in Article 17 and of the following:
1. the agent's qualification certificate;
2. the pre-seller's letter of appointment to the agent; and
3. the agent's address and contact telephone number.
Article 19 If a pre-seller issues a pre-sale advertisement, the pre-seller shall have already obtained a Commodity Premises Pre-sale Licence. Pre-sale advertisements must be truthful and accurate and must not have contents that mislead or deceive the public or are not in accord with the pre-sale commodity premises project. They must state clearly the Commodity Premises Pre-sale Licence number and the department that issued it.
Article 20 A pre-purchaser has the right to require that items stated explicitly in the commodity premises pre-sale advertisement and publicity material published by the pre-seller be included in the commodity premises pre-purchase contract.
Article 21 Five days before issuing a commodity premises pre-sale advertisement the pre-seller shall file a sample of the advertisement with the department-in-charge that issued the Commodity Premises Pre-sale Licence and the department for industry and commerce administration. If the department in charge or the department for industry and commerce administration finds that the advertisement is not in accord with the project, it shall order that publication of the advertisement be halted.
Article 22 When commodity premises are pre-sold, the pre-seller and pre-purchaser shall sign a written commodity premises pre-purchase contract. Within 30 days of signing of the said contract, registration procedures shall be carried out with the real property transactions registration authority of the place where the project is located on the strength of such contract. The real property transactions registration authority shall register this within 20 days of receipt.
Article 23 Before the pre-seller and pre-purchaser sign the written commodity premises pre-purchase contract, the pre-seller may, on the agreement of both parties, collect from the pre-purchaser a set sum as a commodity premises pre-purchase down payment. Before the pre-seller collects a down payment, it shall provide to the pre-purchaser a draft of the commodity premises pre-purchase contract.
When a commodity premises pre-purchase down payment is collected, the pre-seller and the pre-purchaser shall conclude a written agreement specifying the precise sum of the down payment received and the precise method by which it shall or shall not be returned.
Once the pre-seller and pre-purchaser sign the written commodity premises pre-purchase contract, the commodity premises pre-purchase down payment collected by the pre-seller from the pre-purchaser shall become the commodity premises pre-sale payment paid by the pre-purchaser.
Article 24 The commodity premises pre-purchase contract shall set out and stipulate the following:
1. the names, addresses, postal codes and legal certification numbers of the pre-seller, the pre-purchaser and their appointed agents;
2. the basis for use of the land by the pre-seller and the location of the pre-sold commodity premises;
3. the actual floor area and apportioned floor area of the pre-purchased commodity premises and the particulars, building number, storey, unit number and storey height concerned;
4. the price of the pre-purchased commodity premises and particulars and standards of taxes and fees included;
5. method of dealing with discrepancies between actual area at the time the property is delivered and the area agreed upon at the time of pre-sale;
6. date and method of payment and the pre-purchaser's liability for breach of contract if payment is not made within the time limit;
7. the time of completion and delivery for use of pre-sold commodity premises and liability for breach of contract if the premises are not completed and handed over within the time limit;
8. decoration items and standards and the brand, model number and material specifications of equipment, and liability for breach of contract;
9. building standards and operating requirements for infrastructure and ancillary structures for common use and liability for breach of contract;
10. property management particulars; and
11. other items that both parties believe should be agreed on.
Changes in the names, addresses, postal codes or contact telephone numbers of the pre-seller, the pre-purchaser or their appointed agents shall be notified to all parties concerned within seven days of the date of the change.
Article 25 A plan of the pre-purchased commodity premises project and of the building storey shall be appended to the commodity premises pre-purchase contract. The plan shall clearly indicate the position of the building number, storey and unit number purchased by the pre-purchaser.
Once the price of pre-sold commodity premises and the taxes and fees to be collected on an agency basis have been agreed upon and set out by the pre-seller and the pre-purchaser in the commodity premises pre-purchase contract, the pre-seller may not collect further sums from the pre-purchaser unless new taxes or fees are levied by the State or the province.
Article 26 The layout and the quality of the decoration and equipment in the samples of the commodity premises established by the pre-seller shall be the same as in the pre-sale brochure and the commodity premises actually delivered for use, unless the parties involved agree otherwise. Sample premises may not be dismantled before the pre-sold commodity premises are completed and delivered for use.
Article 27 Once commodity premises are pre-sold the pre-seller shall notify the pre-purchaser at regular intervals of progress in construction of the commodity premises.
Article 28 The pre-seller shall provide a Residential Quality Guarantee and a Residential Use Brochure when handing over the pre-sold residential commodity premises to the pre-purchaser.
The Residential Quality Guarantee shall set out the quality grade of the residential commodity premises, give undertakings to bear liability for maintenance of the foundations and main structure for a reasonable number of years of use and give undertakings as to the type and period of maintenance of individual units in the residential commodity premises in conditions of normal use.
The Residential Use Brochure shall explain the structure and function of the residential commodity premises and the type, function and standard of each unit, and shall point out items to be aware of during use.
PART FOUR SUPERVISION AND ADMINISTRATION OF PRE-SALE PAYMENTS
Article 29 Commodity premises pre-sale payment is payment made in advance by the pre-purchaser to the pre-seller as agreed upon in the contract and which, until the commodity premises are completed, checked and delivered for use, is the fee for the construction of the commodity premises.
Article 30 The money in the special commodity premises pre-sale payment account opened by the pre-seller with a bank in the place where the commodity premises project is located may, until the project is completed, be used only for the purchase of building materials and equipment necessary for the construction of the project and for the payment of the project construction schedule fee and statutory taxes and fees. It may not be diverted to other use.
A pre-seller with more than one commodity premises pre-sale project shall open separate commodity premises pre-sale payment accounts.
Article 31 The pre-purchaser shall in accordance with the time of payment agreed upon in the contract deposit the pre-sale payment directly into the special commodity premises pre-sale payment account and exchange the deposit certificate issued by the bank with the pre-seller for proof that payment has been received.
If the pre-seller deals with the commodity premises real estate rights certificate on behalf of the pre-purchaser, the pre-purchaser may retain 15% of the commodity premises price, of which 10% shall be paid once the pre-sold commodity premises are completed and checked prior to delivery for use, and of which 5% shall be paid when the pre-seller hands over the commodity premises real property rights certificate.
If the pre-purchaser deals with the commodity premises real property rights certificate himself the pre-purchaser may retain 10% of the commodity premises price, which shall be paid within ten days of the pre-seller obtaining a commodity premises project property rights confirmation certificate and the delivery of the commodity premises for use.
Article 32 The municipal or county real property transactions registration authority of the place where the pre-sale commodity premises are located shall be responsible for supervision and administration of the deposit and use of pre-sale payments.
Article 33 When the pre-seller applies to register the commodity premises pre-purchase contract, it shall also append the voucher issued to the pre-purchaser by the bank when the first instalment of the commodity premises pre-sale payment is deposited into the special account.
When the pre-seller makes use of the commodity premises pre-sale payment, the bank shall pay the amounts approved by the real property transactions registration authority for payment.
The real property transactions registration authority shall reply within five days of the date of receipt of an application by the pre-seller to use the commodity premises pre-sale payment. Applications in accord with Section 1, Article 30 of these Regulations shall be approved. If use is not approved, a written explanation shall be provided.
Article 34 When supervising and administering commodity premises pre-sale payments, real property transactions registration authorities may collect from the pre-seller two-thousandths of the supervision and administration cost as a supervision and administration service charge.
PART FIVE LEGAL LIABILITY
Article 35 Pre-sellers who violate the provisions of Articles 6, 9, 10, 11, 12, 13, 15, 17, 18, 22, 23, 24, 25, 27, 28, 30 or 31 of these Regulations, and pre-purchasers who violate the provisions of Article 24 or Section 1 of Article 31 of these Regulations thereby causing the other party to sustain losses, shall be liable for compensation in accordance with the law. If a crime is suspected, it shall be dealt with according to law by the judicial authorities.
Article 36 Those who pre-sell commodity premises in violation of the provisions of Article 6 of these Regulations shall be ordered to halt pre-sales by the department in charge. Their illegal gains shall be confiscated and they may additionally be fined not less than 30% and not more than 50% of the price of the commodity premises already pre-sold.
Article 37 If in violation of the provisions of Article 9 of these Regulations, pre-sold commodity premises projects and their leaseholds third party rights are established over, such rights shall be invalid. Losses caused shall be borne by the pre-seller.
Article 38 Those who pre-sell commodity premises in violation of the provisions of Section 3, Article 13 of these Regulations shall be ordered by the department-in-charge to stop pre-sales, go through the procedures and have their illegal gains confiscated, and, additionally, may be fined not less than 30% and not more than 50% of the price of commodity premises already pre-sold.
Article 39 If in violation of the provisions of Articles 17 and 18 of these Regulations the pre-seller and his agent have not indicated the statutory items clearly to the pre-purchaser and continue not to do so when clarification is requested by the pre-purchaser, the department-in-charge shall order rectification and issue a warning. It may impose a fine of not less than Rmb 500 and not more than Rmb 2,000.
Article 40 If the pre-seller issues false advertisements or prints false publicity material, cheating and misleading the pre-purchaser so that the pre-purchaser's legal rights and interests are adversely affected, the pre-seller shall bear the civil liability. Those who deal in or put out advertisements and who know or should know that an advertisement is false but still design, manufacture and put out such an advertisement shall bear joint and several liability according to law.
Article 41 If a pre-seller uses commodity premises pre-sale payments in violation of the provisions of Section 1, Article 30 of these Regulations or accepts commodity premises pre-sale payments directly in violation of the provisions of Section 1, Article 31 of these Regulations, the department-in-charge shall order rectification, reduce or revoke the qualification to develop real property, and, additionally, may impose a fine of not less than 10% and not more than 20% of the money illegally used.
Article 42 If a bank pays out commodity premises pre-sale payments in violation of the provisions of Section 2, Article 33 of these Regulations or a real property transactions registration authority agrees to the use of commodity premises pre-sale payments in violation of the provisions of Section 1, Article 30 of these Regulations, the department-in-charge at the level above shall order rectification and recover the lost money. If they have caused losses to the pre-purchaser they shall bear the related responsibility.
If a real property transactions registration authority does not agree the legal use of commodity premises pre-sale payments by the pre-seller, causing losses to the pre-seller, it shall be liable for compensation.
Article 43 If a party involved does not accept a specific administrative act by the department-in-charge or by other relevant administrative departments it may, within 15 days of the date of receipt of the administrative decision, apply to the authority at the level above for administrative reconsideration, or can appeal directly to the People's Court. If it does not accept the reconsideration, it may within 15 days of the date of receipt of the decision appeal to the People's Court.
If a party involved does not apply for reconsideration or appeal to the People's Court, but does not obey a specific administrative decision, the authority which made the specific administrative decision shall apply to the People's Court for it to be enforced.
Article 44 Neglect of duty, abuse of powers, practice of graft, or the solicitation or acceptance of bribes by personnel working in the department-in-charge or other relevant administrative authorities shall be prosecuted administratively in accordance with the law. If a crime is suspected, such premises will be dealt with by the judicial authorities.
PART SIX SUPPLEMENTARY PROVISIONS
Article 45 These Regulations shall be implemented as of 1 October 1998.