China: 境外上市研究系列:房地产企业境外上市小结(四)

Last Updated: 20 August 2019
Article by Bi Xiuli and He Wang
Most Read Contributor in China, September 2019

近期,房地产企业融资监管趋严呈愈演愈烈之势。银保监会于2019年5月17日发布《关于开展"巩固治乱象成果促进合规建设"工作的通知》(银保监发[2019]23号文,简称"23号文"),严格管控房地产融资行为,从前端拿地到后端居民购房融资均予以规范。23号文要求:(1)商业银行不能:表内外资金直接或变相用于土地出让金融资;未严格审查房地产开发企业资质,违规向"四证"不全的房地产开发项目提供融资;个人综合消费贷款、经营性贷款、信用卡透支等资金挪用于购房;并购贷款、经营性物业贷款等贷款管理不审慎,资金被挪用于房地产开发。(2)信托不能:向"四证"不全、开发商或其控股股东资质不达标、资本金未足额到位的房地产开发项目直接提供融资;或通过股权投资+股东借款、股权投资+债权认购劣后、应收账款、特定资产收益权等方式变相提供融资;直接或变相为房地产企业缴交土地出让价款提供融资,直接或变相为房地产企业发放流动资金贷款。

2019年7月10日,银保监会约谈了部分近期房地产信托业务增速过快、增量过大的信托公司,要求:(1)信托公司增强大局意识,严格落实"房住不炒"的总要求,严格执行房地产市场调控政策和现行房地产信托监管要求;(2)提高风险管控水平,确保业务规模及复杂程度与自身资本实力、资产管理水平、风险防控能力相匹配;(3)要求提高合规意识,加强合规建设,确保房地产信托业务稳健发展;(4)要求控制业务增速,将房地产信托业务增量和增速控制在合理水平;(5)要求提升受托管理能力,积极优化房地产信托服务方式,为房地产企业提供专业化、特色化金融服务。

2019年7月12日,国家发改委在其官方网站发布《国家发改委办公厅关于对房地产企业发行外债申请备案登记有关要求的通知》,提出房地产企业发行外债只能用于置换未来一年内到期的中长期境外债务。

2019年7月30日,中共中央政治局召开会议,分析研究当前经济形势,部署下半年经济工作。中央明确指出,坚持房子是用来住的、不是用来炒的定位,落实房地产长效管理机制,不将房地产作为短期刺激经济的手段。

可以预见的是,在当前国内融资、海外发债收紧的情况下,赴境外上市进行股权融资将可能会成为房地产企业融资的一个重要选择。理论与实践并行,笔者借助本专题同步将目前与房地产有关的主要规定予以了系统的梳理,同时,笔者将近两年房地产企业境外上市的案例予以了整理,就常见的问题予以了小结,以期抛转引玉,更好的服务客户,共同探讨学习。本系列文章目前暂为四篇,前两篇为法律法规篇,后两篇为实践案例篇,本文为第四篇。

【案例2】逾期施工/竣工简析

1.依据

根据《合同法》的规定,依法成立的合同,对当事人具有法律约束力。当事人应当按照约定履行自己的义务,不得擅自变更或者解除合同。当事人一方不履行合同义务或者履行合同义务不符合约定的,应当承担继续履行、采取补救措施或者赔偿损失等违约责任。根据《闲置土地处置办法》,已动工开发但开发建设用地面积占应动工开发建设用地总面积不足三分之一或者已投资额占总投资额不足百分之二十五,中止开发建设满一年的国有建设用地,也可以认定为闲置土地。国有建设用地使用权人应当在项目开发建设期间,及时向市、县国土资源主管部门报告项目动工开发、开发进度、竣工等情况。根据《中华人民共和国城市房地产管理法》,以出让方式取得土地使用权进行房地产开发的,必须按照土地使用权出让合同约定的土地用途、动工开发期限开发土地。超过出让合同约定的动工开发日期满一年未动工开发的,可以征收相当于土地使用权出让金百分之二十以下的土地闲置费;满二年未动工开发的,可以无偿收回土地使用权;但是,因不可抗力或者政府、政府有关部门的行为或者动工开发必需的前期工作造成动工开发迟延的除外。根据国土资发〔2010〕34号文,市、县国土资源管理部门要建立房地产用地开竣工申报制度。在合同约定期限内未竣工的,用地者要在到期前15日内,申报延迟原由;对不执行申报制度的,要向社会公示,并限制其至少在一年内不得参加土地购置活动。根据国土资发[2010]151号文,对房地产开发企业无故拖延开竣工时间、违反预销售时限和方式要求等行为进行处罚,并及时向国土资源、价格、金融等主管部门通报违法违约企业名单。

根据上述规定,建设单位存在着违约的风险,并应及时履行向国土资源主管部门报告的义务,可申请竣工延期。

2.简析

弘阳地产(HK.01996)在招股说明书中予以了披露,并列明了不合规的原因:(1)投资拓展中心因为疏忽未及时申请延长竣工时期。(2)两处物业未及时完成具有客观原因,即该等物业为自有物业及用作配套设施用途的,只有在住宅物业大致竣工的后期才会确定物业用途。承担的主要责任:(1)构成了违约,存在支付430万人民币违约金的风险;(2)该等延误工作超过一年,存在被政府主管部门收回相关未竣工区域的风险。采取的补救措施:(1)筹备竣工验收程序及加快建设进度;(2)由于涉及到存在行政处罚的风险,因此到相关主管部门进行访谈,进而确定不会对其进行行政处罚;(3)增强内控,通过内部指引,明确物业进展内部程序,列明责任及计划;(4)项目公司的运营团队及总部的运营管理中心制定和检讨计划安排,加强时点检查;(5)法律审计部门加强监管力度,及时通知合同的履行进度及督促相关方提前申请延长竣工时间。

3.参考案例

3.1弘阳地产(HK.01996)

3.2中梁控股(HK.02772)


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