I was approached by an expat in Shanghai today in my office.

Here is his story: he signed a tenancy agreement for a residential property with a two-year period. In the middle of the term, he landlord notified him of his intention of selling the house and asked the tenant to move out by a specified date. He does not want to move. He inquired that what legal actions he should take now.

Two legal issues are concerned here: (1) the doctrine of "Kauf bricht nicht Miete", namely, "sale does not affect/breack lease"; (2) pre-emptive right to purchase the leased property.

Accordingly, depending on your purpose:

(1) you may sue the new owner to continue the original lease contract. A practical thing is that even you finally win the case, you may feel awkward to live in that house;

(2) you may sue the old owner for damages for infringement upon your pre-emptive right to purchase the house. Tenant has the burden of proof in regard of his or her losses. A better way is to pre-set the liquidated damages for breach thereof, say, three-month rental, in the lease contract.

(3) if the sale is still ongoing and the house is not registerred under the name of the buyer, the tenant may sue to exercise its pre-emptive right to buy the house at the same terms and conditions the landlord offered to that buyer.

For landlord, you may also take care when drafting your lease contract to make sure your future sale won't be troubled by leasee's pre-emptive right. For that end, you need to ask the tenant to expressly waive its pre-emtptive right to purchase.

Are you asking or telling? Strange?

Basically, if your landlord sells, you're up sh1t creek in a barb wire canoe without a paddle. Not a lot you can do.

I know a lot of people don't set much store by Chinese contracts but the one I had at a previous apartment (where you now live Mat) was very much in my favour if the landlord wanted to sell and put me out. I kept hoping he would...

the owner he can sell his apt when he want without tell you nothing, on your side you have the right to finish the contract with the new owner at the same conditon, the new owner he can no change any condition of the new contract, whe he will buy the house he will no that have some inside, if he's no agree and he wont you to go out, he can do, he send you a letter to give back the apt in 1 month, and pay you the deposit plus the fine that he's on the contract in case of brackage ( usally the same amount of the deposit ), and you must leave
happen to me, but I was lucky to find a new owner that let me finish my last 4 month of the old contract.

Doroto wrote:I was approached by an expat in Shanghai today in my office.

Here is his story: he signed a tenancy agreement for a residential property with a two-year period. In the middle of the term, he landlord notified him of his intention of selling the house and asked the tenant to move out by a specified date. He does not want to move. He inquired that what legal actions he should take now.

Two legal issues are concerned here: (1) the doctrine of "Kauf bricht nicht Miete", namely, "sale does not affect/breack lease"; (2) pre-emptive right to purchase the leased property.

Accordingly, depending on your purpose:

(1) you may sue the new owner to continue the original lease contract. A practical thing is that even you finally win the case, you may feel awkward to live in that house;

(2) you may sue the old owner for damages for infringement upon your pre-emptive right to purchase the house. Tenant has the burden of proof in regard of his or her losses. A better way is to pre-set the liquidated damages for breach thereof, say, three-month rental, in the lease contract.

(3) if the sale is still ongoing and the house is not registerred under the name of the buyer, the tenant may sue to exercise its pre-emptive right to buy the house at the same terms and conditions the landlord offered to that buyer.

For landlord, you may also take care when drafting your lease contract to make sure your future sale won't be troubled by leasee's pre-emptive right. For that end, you need to ask the tenant to expressly waive its pre-emtptive right to purchase.

I'm no lawyer but it sounds to me that if landlord asks you to live before the end of contract he/she is breaking the contract same as if you live before the contract ends. In my case my contract says that if either part breaks the contract the penalty is one month of rent.
Yes, I'm sure you can become a pest and sue the landlord for: a,b & c, but sounds too freaky complicated considering that you got a gazillion of properties you can move into. Life is short so...............

caffe1962 wrote:the owner he can sell his apt when he want without tell you nothing, on your side you have the right to finish the contract with the new owner at the same conditon, the new owner he can no change any condition of the new contract, whe he will buy the house he will no that have some inside, if he's no agree and he wont you to go out, he can do, he send you a letter to give back the apt in 1 month, and pay you the deposit plus the fine that he's on the contract in case of brackage ( usally the same amount of the deposit ), and you must leave
happen to me, but I was lucky to find a new owner that let me finish my last 4 month of the old contract.

Looks like you got screwed by your last landlord. Seems he/she took the full stop "." key off your keyboard.

condesa wrote:Life is short so...............

Condesa's got it!

I'd like to see someone try to go to court and get any compensation or stop the sale of a property in this situation. It would be quite entertaining to read the updates on this thread...

But Condesa's right, life's too short, and in the end the tenant would lose anyway.

To the OP: Tell your friend, it's time to move. Contracts ain't worth anything. Do you think if your friend moved out in the middle of his contract that the landlord could get any help from the legal system? Not a chance in hell.

Doroto wrote:
Two legal issues are concerned here: (1) the doctrine of "Kauf bricht nicht Miete", namely, "sale does not affect/breack lease"; (2) pre-emptive right to purchase the leased property.

Wow, I love those imaginary rights! Is that from the Second Life?

start packing

In our practice, we see different clients. One particular group is people who start lawsuit only on the ground that he feels that he is unfairly treated or he simply wants to make the other party suffer a bit, although the compensaton proceeds may be only nominal.

For most people, life is so short, and it is not worthy to have a fight over such dispute esp when there are a great number of alternatives in market. Even personally, i might agree on you. But you can not rule out people having a fight over such dispute.

In particular, in the case of dispute over pre-emptive right, or right of first refusal, we have seen many domestic cases involving fights over the right. I have no doubt that there are foreign people encountering the same situations.

Just imagine you are living a nice house where you have a good view in front of your window, and it is close to hospital and your kids are attending a good school in the neighborhood, now the landlord simply ask you to leave because she wants to sell the house to a third party even without giving you a notice, and now do you think you may think of using your pre-emptive right, or you simply start packing and walk away tamely?

Compared to residential property, tenants of commercial properties are more keen on their right of first refusal.

In all, i wrote this here just to inform you that you may have such strategies when you are unfarily put in such an awkward situation and you may take advantage of these legal rights to protect your ligimate interests.

That's why it's better to put a clause in the contract in the first place and avoid the money grubbing lawyers.

ProcrastiNation wrote:That's why it's better to put a clause in the contract in the first place and avoid the money grubbing lawyers.

You are right.

One thwarting factor keeping people from retaining a lawyer in China is that courts seldom support claim for cost of legal fee unless you have an express clause saying that the failing party shall assume the legal fee of the other party.

dont trust the courts in china....just start packing......find another place.....

Doroto wrote:

ProcrastiNation wrote:That's why it's better to put a clause in the contract in the first place and avoid the money grubbing lawyers.

You are right.

One thwarting factor keeping people from retaining a lawyer in China is that courts seldom support claim for cost of legal fee unless you have an express clause saying that the failing party shall assume the legal fee of the other party.

Expressed clause in the contract? Curious...can an employer put this clause in the employment contract, that if the employee sues and loses then they will be responsible for the employers' lawyer fees?

Guess what, dumbasses ? The existing property owner has to go to the real estate notary with his i.d. and the new owner and his i.d. to sign over the property. One of the forms to do this transaction has to be signed by the tenant. Tenant doesn't agree, they can't transfer the property.

EVER HEARD OF FORGERY? WOULD THEY REALLY GO VERIFY THE FOREIGN TENANT'S SIGNATURE? WHO'S THE DOOFUS NOW?

like I said start packing

If a poster wants to dissaggree that's ok....But if you want to get nasty and call people names they perhaps it time for someone to kick the s h i t out of you

put up your dukes....

quote="MoonOverMiami"]...can an employer put this clause in the employment contract, that if the employee sues and loses then they will be responsible for the employers' lawyer fees?[/quote]

Moon, think over the two kinds of contracts for a while, and I guess you may change your idea, so i don't think your question will need any answer.

SnappySammy wrote:dont trust the courts in china....just start packing......find another place.....

have you been screwd by Chinese courts? While it is apparent that Chinese courts throughout the country are not worth a thumb up, courts in Shanghai do hold certain credibility which you can trust, esp in small cases, such as lease. Pls do have faith here.

Doroto wrote:

SnappySammy wrote:dont trust the courts in china....just start packing......find another place.....

have you been screwd by Chinese courts? While it is apparent that Chinese courts throughout the country are not worth a thumb up, courts in Shanghai do hold certain credibility which you can trust, esp in small cases, such as lease. Pls do have faith here.

I HAVE BEEN SCREWED BY SHANGHAI COURTS....AND MY SHANGHAI LAWYER......... AND THE STATE OWNED SHIPPING LINE.....$545,OOO USD's
plus the cargo was chinese drywall......another slight problem....

leidelaohu wrote:

MoonOverMiami wrote:...can an employer put this clause in the employment contract, that if the employee sues and loses then they will be responsible for the employers' lawyer fees?

Moon, I'm proud of you. Give ya another couple years and you'll make the vicious landlords of old stand up and give face

overh20 is correct (for once)

I know this because I'm in the same situation as the owner of the house we are renting wants to sell it (good luck at the price they are asking). If sold, the contract states 2 months to vacate plus 2 months rent from the owner for the grief it caused.

I personally asked for this to be in the contract as I knew it could be a problem down the road if they sold the property.

Like I said "start packing" Lady LL < Over is always right . When it comes to China he knows something about everything.....His mentor knew everything about everything....

as far as your personal situation I have a beautiful house in FC you might like...then again you might not ....It's very charming....elegant, and understated....somehow I don't think understated elegance is what pushes your button....

Understated elegance = no heat, no hot water, etc....

Yup, I know what you're selling, my friend...

I wasn't selling anything....I was going to loan it to you and your family.....You don't have clue, what my house is like......there's heat(most of the time...and enough hot water for one shower a week.....TIC.....

Wow, you were going to let us borrow it? How kind of you..

If we ever get kicked out of our Jin Qiao trailer, I'll let you know.

I hope it has two large walk-in closets for my clothes, purses and shoes; otherwise it won't be big enough.

it's big enough...trust me.....

In Shanghai, contracts overrule the law in employment issues and I'm sure it's the same in property issues too, especially where foreigners are involved.

Sadly, you only learn such things in China with experience. Look through the contract and negotiate on any point that is important.

We recently requested a clause that states we can complete our lease if the property is sold.

At our last place, there was a vacant lot next door, and we put in a clause that allowed us to exit our contract with three-months' notice and without penalty if major construction (like an office building or apartment complex) starts.