共有产权保障性住房制度中的法律问题及公证应对

The Legal Issues and Notarization Countermeasures for Common Property System of Affordable Housing

共有产权保障性住房作为未来保障性住房的主要模式,已经基本得到法律法规的确认,但现阶段立法者的精力主要集中于宏观架构,忽略了制度运行中的具体问题。在购房未满5年的期限内转让、担保、出租甚至分割应有份额的约定属于违法行为,公证机关应拒绝办理此类公证;因房屋使用、管理产生的债务可完全由受保障对象承担,由于不具有公示效力,政府并不因此而免责,公证机关应谨慎审核该类约定条款;因房屋侵权所产生的债务可完全由受保障对象承担,公证机关可对此予以公证;物业费、业主权等事宜可完全由受保障对象承担、享有,公证机关可对此办理公证;一般管理行为可明定受保障对象单独为之,重大修缮行为则不宜使政府的决策权被多数决机制架空,公证机关需进行实质审查;不论法定继承,还是遗嘱继承,公证机关均需谨慎对待5年禁售期内的继承公证,对超过5年禁售期的相关继承公证则可持相对宽松态度。

The common property affordable housing,as the widely used pattern of future affordable housing,has been confirmed basically by Chinese laws and regulations.However,the legislators at this stage are mainly focus on system construction,ignoring specific issues in the system operation.In practice,due to lack of specific legal rules,many matters regarding common property housing are freely agreed between the guaranteed groups and the government,which requests higher standard of legitimacy review conducted by notary agencies.In particular,it is illegal to transfer,guarantee,lease or even divide the fair share in the purchase of less than 5 years period and notary organs should refuse to deal with such notarization;The debt arising from the use and management of the house can be fully borne by the guaranteed groups.The government is not exempt from the liability because it does not have the effect of publicity and the notary organs shall carefully verify such contractual terms;The debt caused by the house tort can be fully undertaken by the guaranteed groups,which can be notarized by the notary organs;The property management fees and property ownership can be fully undertaken and enjoyed by the guaranteed groups,which can be notarized by the notary organs;General management behavior can be clearly defined as the guaranteed groups alone,and major behavior repairing is not appropriate to make the government’s decision-making power by the majority of the decision-making mechanism,and notary organs need to carry out substantive review;Whether it is statutory or testamentary succession,notary organs should be cautious about succession notarization in the 5-year lock-up period,and take a relatively relaxed attitude towards succession notarization over the 5-year lock-up period.