Theory Of Preemptive Purchasing Right Of Tenants

The vagueness of preemptive right of tenants in purchasing the rental housing propertyspeculated in the laws and regulations in China leads to the inconsistency of judgments injudicial practices. The academic circles also hold controversy about the nature andqualification of tenants’ preemptive purchasing right. To settle the disputes, this article willstudy the system of preemptive purchasing rights of tenants.Divided into five parts, this article is composed of41,000characters.Part I. The debate about the abolishement and preservation of the preemptive purchasingright of tenants. Although in our country law, the content of the preemptive purchasing rightof tenants is fuzzy and the operability is poor. The exercise of the preemptive purchasing rightof tenants has a lot of controversy over it. But in conformity with the efficiency principles ofmarket economy, the system functions as stabilizing social relations and achieving essentialsocial equity that determines the necessity of the system.We still have a need to study thissystem,unified issues,enhance practical operability.Part II. Discussion of the nature of tenants’ preemptive purchasing right. Definition ofthe nature of preemptive purchasing right is the premise of settling the various disputes abouttenants’ preemptive purchasing right. Nature of tenants’ preemptive purchasing rights includesright of formation, conditional right of formation, right of claim, creditor’s right, real right,vested right and expectant right. The author of this article believes that the preemptive rightshould be explained by real right if it is notified publically and be explained by creditor’sright if it is not notified publically.Part III. Discussion of specific issues when tenants exercise the preemptive purchasingright. Define the subject scope of preemptive purchasing right and point out that the varioustenants under the tenancy contract, residents living with the tenants and the sub-tenant underlegal sublet contract all have the preemptive purchasing right. Discuss the terms such as equalconditions and notification obligation. Determination basis is the essential provision in thetenancy contract signed by seller and the third party. Equal conditions refer to the similarity ofhousing price, terms of payment and disposing time. Lessors should carry out the notificationobligation by notifying the tenants after confirming the contract details of rental house sellingwith the third party and before signing the contract. About the understanding of disposing time, laws and regulations in China do not have accurate speculations on the disposing time oftenants’ preemptive purchasing right. The author of the article believes the notice periodshould be speculated respectively from the start of notification obligation to both tenants’replying periods and agreement period. The disposing periods of tenants’ preemptivepurchasing right should also be divided into replying period and agreement period. Replayperiod could be15to30days and agreement period could be10days, which makes disposingperiod of tenants’ preemptive purchasing right of25to40days after receiving the notificationfrom the lessor.Part IV. Discussion of legal validity of tenants’ preemptive purchasing right. It mainlyincludes internal and external validity. Internal validity refers to the validity between houselessor and the tenants while eternal validity refers to the force upon the third party who wantsto get the ownership of the house by signing purchasing contract with the lessor, whichmainly discusses the legal protection of the interest of third party. The tenancy relations canonly have the effectiveness of confrontation of the third party by registration and publicnotification. Unregistered tenancy relations cannot confront the third party. The contractbetween the third party and the housing seller is still effective when the third party cannot getthe ownership of the house and the third party has the rights to hold the seller responsible forviolation of the agreementPart V. Provide solutions for the conflict of tenants’ preemptive purchasing right. withother rights. When there are conflicts of the preemptive purchasing rights between co-ownerand tenant, the author of the article believes that co-owner’s purchasing right precedes thetenant’s preemptive purchasing right because it conforms to the principle that ownershipprecedes usufruct rights, which will also simplify the legal relations and better embody thepurpose in designing the preemptive purchasing system. When there are conflicts inpreemptive purchasing rights between sublet tenant and original tenant, the article holds thestand that the sublet tenant’s purchasing right precedes the original tenant’s purchasing rightbecause it conforms to the principle that real right precedes creditor’s right, conforms to thefact that the real right of sublet tenant in occupying and using the house precedes thecreditor’s right of original tenant who do not occupy the house, conforms to the fact that thereal right of sublet tenant in occupying and using the house precedes the creditor’s right oforiginal tenant who sublet the rental contract and make profit from the price difference, betterembody the purpose in designing the preemptive purchasing system, conforms to the aim of simplifying the transaction procedures, lowering the transaction costs and increasingefficiency of the preemptive purchasing right.