Roof of distributed PV power plant leasing legal risk

Polaris solar PV net news: distributed solar projects, PV is the most fundamental demand lifetime guarantee on the roof of the lease is not affected. Distributed PV projects in the investment, look over here, six legal issues resolved in the article, we’ve combed the due diligence for new projects which require the attention of a number of issues, but in the course of operation, roofing provider could emerge at any time in bankruptcy, mortgages, seized by judicial authorities, implementation issues, for photovoltaic power plant was “great misfortune”. Today, as you continue to talk about distributed PV rooftop leasing legal risk management.

Lease registration on the project’s impact

The 54th of the urban real estate management law provides: “the lease, the lessor and the lessee shall sign a written rental agreement, agreed the term of the lease, hire, lease, repair responsibilities, such as articles, as well as other rights and obligations of both parties and registered to the property management Department. “Around the rental registration was also similar provisions. In practice, this article seems to be “exalted light down”, do not, however, affect whether registration of the lease contract, does it affect “the sale does not break lease” implementation of practice was not without doubt.

✲ Effect itself without filing does not affect the rental contract

The Supreme People’s Court concerning the trial of urban housing leasing contract dispute explanations on several issues concerning the specific application of law to article fourth: “parties to a lease agreement are not in accordance with the laws and administrative regulations for the registration procedures for the requesting confirmation of the contract, people’s courts will not support it. “Judging from the nature of the Registration Act, which belongs to the administrative acts of the executive authorities, does not affect the validity of the contract itself.

✲ Without filing does not apply “sale lease-breaking” principle

Shanghai Municipal higher people’s Court on the handle lease disputes a number of answers to questions of applicable law (three) (Shanghai Gao Famin (2015), 16th) article 30th: unregistered leases when the ownership changes, the lessee cannot be “sale lease-breaking grounds” to new housing rights require continued performance of the contract. However, there is evidence to prove that a new housing rights of the lessee knows or should know that leasing facts otherwise. “The Shanghai High Court, it was explained that: a large number of commercial leases and” sale is not breaking the lease “is consistent with the legislative intent is not the right to protect the living, from the perspective of balancing the interests of parties, tend to unregistered lease contract does not have effect against third persons. At this point, Shanghai’s High Court made a distinction between commercial leasing and renting different objectives and distributed PV power station appears to be a commercial lease, do not belong to “sale lease-breaking” legislative protection in mind.

In practice, have registered businesses for taxes, red tape and other considerations are the rental registration, which gives PV power station within the life cycle of 25 years lease potential legal risk to the right.

Two lessees (PV) that “rental” method

According to the Supreme People’s Court concerning the trial of urban housing leasing contract dispute explanations on several issues concerning the specific application of law 20th article, “sale lease-breaking” principle there are two exceptions: “(a) the creation of collateral rights in rental housing has taken due to the mortgagee the right to mortgage any change of ownership, (ii) in rental housing has taken is sealed by the people’s Court. “Obviously, a lessee (PV) that” lease “is the guaranteed rental rights are not affected by the seizure, mortgage of important conditions.

In practice, if in front of a mortgage, seizure, parties to a lease contract is in accordance with the People’s Republic of China on urban real estate administration law on 54th, housing and urban-rural development Department of the commodity housing lease management, 14th, 19th article for the lease registration procedures, can generally be found lease before the contract is signed the mortgage, seizure. According to the Zhejiang Provincial higher people’s Court of the third party’s claims about when performing non-domestic tenancy notice on some questions (Zhejiang high justice (2014), 39th) rules, in the case of failing to handle the rental registration, the lessee (PV) are also considering ways to prove “lease”:

✲ Rental contracts of the mortgage, seizure before the corresponding lease lawsuit or arbitration;

✲ Rental contracts of the mortgage, seizure was for lease contract before the notary;

✲ Other solid evidence that leasing contracts signed in mortgage, seizure before, such as lease contracts the parties have to mortgage, attachment to pay rent before taxes, put on State property company handling rentals of housing registration, statement to the mortgagee rental details, etc.

Three leases in the enforcement process of the removal and the tenant protection

Distributed PV in a 25-year life cycle, its leasing of factory owners to avoid operational difficulties or even enforce workshop should take place. Supreme People’s Court on court civil implementation in the auction, and sold property of provides (method release (2014) 16th,) 31st article provides: “auction property Shang original of rental right and he with benefits real right, not for auction and eradication, but the right continues to exists Yu auction property Shang, on prior of guarantees real right or other priority by claims right of achieved has effect of, court should law will its removed Hou for auction. “In the process of enforcing the lease is removed, has had a big impact distributed PV power station.

Rental point in time can be represented in figure above is:

Roof of distributed PV power plant leasing legal risk

Proposal of execution

Implementation of the Court decision after the auction or sale of housing, distributed PV power station should be submitted to the Court within the prescribed execution. In enforcement procedures, such as the Shanghai Municipal higher people’s Court in the review and processing of answers to questions about housing leasehold (trial) (the Shanghai High Court (2015), 75th) 1th: “outsider thinks its on the right and the right of rental of lawful possession, shall from the date of notice written objections to the implementation of the Court in the 15th. Outer party fails to submit a written objection, implementing the right to housing in the Court should not afford the rental to be commissioned in the State of evaluation, auction or sale. “The execution of the main is to prove that the lease does not belong to the Supreme People’s Court concerning the trial of urban housing leasing contract dispute explanations on several issues concerning the specific application of law 20th article, lease or occupy housing prior to mortgage, attachment of the contract.

✲ Leasehold removal standards

What is “at the real rights for security or affect the implementation of other priority right to be repaid”? This is the removal of leasehold in the forced auction process standards from the judicial practice, which belong to the scope of the Court’s discretion, the main consideration for auction prices, lease term length effects as well as leasing to help people use, and other factors.

We believe that distributed photovoltaic plant on lease of the factory roof does not belong to “the real rights for security or affect the implementation of other priority right to be repaid” situation, mainly because the roof of leasing is different from the ordinary lease, will hardly affect the right hand man of using proceeds of the House itself.

✲ Tenant rights-right of first refusal

In distributed PV power station 25 years of life cycle within, keep roof rental relationship not variable is maintenance power station stable run and interests maximize of basic demands; in extreme situation Xia housing property had to “easy main” of when (as meet “sale not broken rental” exception situation, in was court forced auction process in the removal rental right,), tenant people protection itself interests of ultimate way is use “priority purchase right”. Contract law article No. 230 of the tenant in the “lessor seller lease” situation pre-emption under; in practice, the lessee (PV) may experience the following problems:

A lease is a lease right and the roof in the “right of first refusal” on the issue of conflict. Distributed PV power plant rental plant rental condition exists in itself, there are two tenancy rights who is more “priority” issues.

Second rooftop lease removal and forced sale by the Court, will affect the tenant’s right of first refusal.

Third, lease occurs after seizure, but if the lessee is in good faith, do I still have a preemptive right to question.

Second to third problem, the Shanghai Municipal higher people’s Court on execution procedure reviews and answers to questions about housing leasehold (trial) (the Shanghai High Court (2015), 75th) 16th is explained in detail, as it thinks:

“Outsider housing lease law advocated by the real rights for security or other priority right to be repaid, before executing the court seized, regardless of whether the Court ruled according to law after deducting the rental right to housing be liquidated, third party’s capacity as a lessee shall not affect the exercise of the right of first refusal, the Court should ensure their right of first refusal. Case occurred in the implementation of the right to housing rentals claimed by the court seized after belongs to white, the Court should ensure their right of first refusal. “This reference is provided.

On the first question, theory and judicial practice is controversial. We believe that the controversy in order to reduce the right of first refusal, distributed PV roof rental agreement or expressly agreed upon in the contract energy management protocol in the PV plant under certain conditions the preemptive right, agree to pre-emption cannot be exercised in case of compensation mechanisms.

Original title: on the roof of distributed PV power plant leasing legal risk |
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