Study On Real Estate Commercial Leasing In Legal Issue

Leasing of real estate is that targets at real estate leasing. Real estate leasing in real life is a relationship between real estate that is based on a form of separation of ownership and use rights, and contents for paid and time-limited transferring real estate ownership and use right. The nature of the leasehold of real estate is a controversial in theory that has always been given special attention to countries in civil law. Real estate leasing has a dual legal property that is claim right and real right. Since the parties entered into lease contract, the relationship between claims arisen and the lesser delivers leasehold when the lessee forms the rights of possession, use and benefits, real right relationship generated. As the commodity trading prosperity and diversification, the shop in the traditional sense can no longer meet the development needs of the market economy, so real estate lease further tends to commercial purposes. The rise and development of commercial leasing market in Shenzhen and the Shenzhen municipal Government continuously improves the leasing management measures, not only embodies the broad development prospects in commercial rental real estate, but also a modern commercial society of "make the best use" in miniature.With the development of market economy, the use of the real estate tends to diversification. For the real estate lease contract, the parties’ rights and obligations established by state law that meet a powerful intervention, the consistency of legal rights, obligations and contractual rights and obligations have manifested fully in relations of the real estate leasing. However, from the perspective of freedom of contract, the generation of commercial rental real estate didn’t undermine the principle of freedom of contract; the protestation of the interests of the lessee is the maintenance of the real estate leasing transactions and transactions of certain fairness and order in essence. To ensure relative stability and order of the leasing, China’s "Contract Law" further confirmed legal status of the rule of "sales can not devastate lease". "Sales can not devastate lease" has played an active role in taking effectively the effectiveness of leasehold and maintaining the stability of the socio-economic order, it reflects the order value target that the law pursuit. In the commercial lease, the precondition is an interest balance between the lesser and the lease, and constructs an efficient and reasonable commercial lease management system. Residential is a more prevalent phenomenon in our country. It is an expression of the commercial rental real estate market development. From our cities in "Residential commercial" point of view, it has features such as: varying types, distribution of regional complex, lack of management mechanism, low legal ratio, imperfect system of legal norms, etc. "Residential Commercial does not only exist in our country, but also in the early development of commodity economy of the United Kingdom and Hong Kong. Britain’s "home business" control policy is primarily through the development control policies to achieve, such as through the development of rules, development planning and case tried other means to strengthen the management of the daily development permit. The Residential Commercial" policy of Hong Kong’s government is the mixed-use control policy, which is primarily based on the statutory plans to carry out the development control. In China mainland, "Residential Commercial" issue has triggered a fierce debate and also there are many problems in practice. For the "residential commercial" problem, it should be limited primarily through the business sectors, the scope, business scale and the number of such restrictions, and through the special provisions for restrictions on certain specific sectors of the "Residential Commercial" behavior, distinguishing between urban functions, "Residential commercial" can be concentrated to a unified plan of the commercial networks and other measures to resolve as much as possible.The legal protection of commercial leasing real estate depends on the improvement of real estate registration system. Registration of real estate has some problems such as: non-uniform legislation in the registration, the registration authorities are not uniform, registration is too narrow, which results a variety of flaws in the registration. In order to maintain the order of real property leases, the law has been registered and unregistered, as well as all acts of subleasing real property lease requirements. Real Estate Registration has limited the autonomy of the parties to some extent and increased the transaction costs, but it is necessary for the public interest and the market turnover order. On the concerning of the long-term interests, it is beneficial to protect the rights of the parties. The purpose of the contracting parties of the transaction can’t be achieved without registration of lease contracts and also it may be a waste of many manpower, material and financial resources, and it would not achieve and ensure the security role. Housing sublease is more prevalent in our country, which has become the investment model rather than the subleasing business model. it is a big challenge to maintain the market order. Housing sublet can be divided into legal and illegal sublet. In a legal sublet, the income of sublet should be vested in the lessee in general, except otherwise agreed by the contract. For the illegal sublet, the lessor should request that sublease should assume liability in tort according the provisions of tort. In the case of illegal subletting, the lessor can relieve signed the lease contract with the lessee according to the law at any time and hold the responsibility of the lessee’s breach of contract.