China: 定建租赁合同效力分析

Last Updated: 2 September 2019
Article by Li Deting
Most Read Contributor in China, September 2019

当前我国各地工业工地供应日趋紧张,各地土地管理部门纷纷对工业用地利用提出税收达成要求,工业工地的供给方式也逐步采用"租让结合,先租后让"的供应方式。在这样的时代背景下,企业直接通过招拍挂方式获得工业用地建造工业厂房的难度增加,部分企业转而向工业园区、工业地产开发商承租厂房、仓储设施等。但由于标准厂房、仓储设施并不完全满足企业个性化需求,因此,很多企业采用向工业园区、工业地产开发商定制物业并租赁的方式(下称"定建租赁")解决厂房、仓储设施使用问题。

定建租赁相比传统的房屋租赁是更为复杂的法律关系,定建租赁合同履行过程中常常发生争议,而其中经常发生且非常重要的争议点就是定建租赁合同效力的问题。考虑定建租赁模式在实践中越来越普遍,有必要厘清定建租赁合同效力问题。我们希望通过本文引发讨论、形成共识。

一、定建租赁模式简介

定建租赁是指工业用地土地使用权人(下称"地产商"),根据企业(下称"定建方")提出设计要求和建造标准,在该工业用地上建造厂房、仓储设施等物业,待建造完成后出租给定建方的一种交易模式。

定建租赁合同是地产商和定建方就双方在定建租赁交易模式中双方权利和义务进行详细约定的合同,通常包括定向建造条款和租赁条款,部分定建租赁合同包括定建方对租赁厂房的购买选择权条款。定建部分通常包括建造内容、建造标准、验收交付标准、施工报建手续的办理、设计文件审核确认、施工管理、建造费用确认方法等内容。租赁部分主要包括租期、起始日、租金、用途、维修和保养、公用事业费支付、续约选择权、优先购买权等内容。

二、定建租赁合同效力问题提出

如前所述,定建租赁合同包含定向建造和租赁两部分内容,因此定建租赁合同均签署于厂房开始建造之前,尚未办理施工报建手续,有时甚至地产商尚未取得土地使用权。那么,此种情况下签订的定建租赁合同是否有效?

对于这一问题,实务中,存在两种截然相反的观点。

一种观点认为定建租赁合同无效,主要理由是:《最高人民法院关于审理城镇房屋租赁合同纠纷案件具体应用法律若干问题的解释》第二条也规定"出租人就未取得建设工程规划许可证或者未按照建设工程规划许可证的规定建设的房屋,与承租人订立的租赁合同无效。但在一审法庭辩论终结前取得建设工程规划许可证或者经主管部门批准建设的,人民法院应当认定有效"。因定建租赁合同签署时尚未办理施工报建手续,有时甚至地产商尚未取得土地使用权,根据前述司法解释的规定,当然无效。

另外一种观点认为,定建租赁合同并不违反法律法规的强制性规定,法律法规未禁止在取得房地产权证前签署租赁合同,定建租赁合同合法有效。

三、定建租赁合同效力分析

在分析定建租赁合同效力前,我们先看下定建租赁合同的法律性质。我们理解定建租赁合同不同于一般的房产租赁合同,两者至少有以下明显区别:

(1)定建租赁合同包括定向建造条款和租赁条款,因此,它所包含的法律关系并非单一的租赁法律关系;

(2)定建租赁合同签署时租赁物业尚不存在,需要根据定建租赁合同建造,待建造完成后交付给定建方,租赁期方才开始计算;

(3)定建租赁和预租也存在区别,因预租通常不包含定向建造的内容。

基于以上差别,我们理解定建租赁合同并非简单的租赁合同法律关系,定建租赁合同所构建的法律关系是一种非典型性、复合性法律关系。

因为定建租赁合同不同于租赁合同,我们理解,在判断定建租赁合同效力时不能简单地适用《关于审理城镇房屋租赁合同纠纷案件具体应用法律若干问题的解释》第二条规定[1]。对于该条规定,我们理解:

(1)该条针对未取得建设工程规划许可证或者未按照建设工程规划许可证规定建设的违法建筑,目的是禁止违法建筑的租赁,而定制租赁合同中租赁物业尚未建设,称之为违法建筑明显不当;

(2)如果否定定建租赁合同的效力,将对定建租赁的一方或者双方当事人不公平。如因一方违约导致双方发生争议,诉至法院后,定建租赁合同被判无效,不仅非违约方合同预期目的无法实现,而且合同约定的违约救济措施也会因合同的无效而无法援引。

(3)如果否定定建租赁合同的效力,可能会发生地产商的道德风险。在定建租赁合同取得建设工程规划许可证本是地产商的重要合同义务,如果因地产商没有取得建设工程规划许可证这一重大违约导致合同无效,可能引发地产商的道德风险。

我们理解,只要定建租赁合同内容不违反法律法规,那么定建租赁合同整体应当有效,只是其中租赁有关条款因租赁物业尚未建成,不具备履行条件。

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